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- Year: 2004
- Country: Timor-Leste
- Language: English
- Document Type: Publication
- Topic: Assessments,CSO Framework Legislation
JUDICIAL SYSTEM MONITORING PROGRAMME
PROGRAMA MO NI TO RI ZA SAUN BA SISTEMA JUDICIAL
JSMP R EPORT
D RAFT L AW 29/I/ 3A
FREEDOM OF A SSEMBLY AND D EMONSTRATION
Dili, Tim or Leste
The Judicia l System M onitoring P rogramme (JSM P) was set up in early 2001 in Dili, East
Timor. Thr ough court monitor ing, the pro vision of legal analysis and th ema tic reports on th e
develop men t of the judicia l sy stem, JSMP aims to contr ibute to the ongoing evaluation an d
building o f the jus tice syste m in East Timo r. For further information see
JSMP would like to express its gr atitude to a number of donors: Ausaid, USAID, The Asia
Foundation and the International Commiss ion of Juris ts ( Australia) who have contributed to
the deve lop ment of this report.
Judicial System Monitoring Programme
Rua Setubal, Kolmera, Dili – Eas t Timor
Postal addr ess: PO Box 275, Dili, E ast Timor
Tel/Fax: (670) 390 3323 883
Mobile: +670 7233725
TAB LE OF C ONTENT S
1. EXE CUTI VE SUMM ARY 4
2. RECOM M ENDATI ONS 5
3. ARTICL E 5: REST RICTIONS 7
4. ARTI CLE 6: TIME RESTRI CTI ONS 10
5. ARTICL E 7: INTE RRUP TIONS 11
6. ARTI CLE 15: OTHER CRIMES 13
1. Executive S ummary
JSMP believ es tha t if par liam ent wishes to pass a law regulating freedom of assem bly and
dem onstrations, draft law 29/I/3A “Bill on Freedom of Assembly and Adm inistratio n” should no t
be passed without significant am endm ents. In JSMP’s opinion this draft law is very restrictive, to
the point that it will be very difficult to hold dem onstrations in East Tim or in an effective m anner
if this law is passed. JS MP believ es that su ch re strictions ar e at th e very leas t again st the sp irit o f
the Constitution which protects the right to freedom of asse mbly and dem onstration.
The right to assem ble and dem onst rate is a ri ght governed in the Con stitu tion of East Tim or.
Article 42 gives every person th e freedom to as semble peacef ully and unarm ed, without th e need
for prior authoriza tion a nd in accord ance with th e law. The Constitu tion of East Timor restricts
other gu arantees p rovided in the Constitu tion in Article 24 by governing th at rights can b e
restricted if they violate other constitutionally protected rights.
Generally speaking the m ajority of hum an rights ar e not considered to be absolute rights. The
rela tionsh ip between these rights and their in terd ependency often gives rise to conflict when
guarantees are im plem ented for separate hum an right s. In such circum stances, th ere n eeds to be a
balance am ongst the inte rrelated righ ts to identify the scope of any restrictions.
However, J SMP believ es th at this draft law contai ns articles that m ay possi bly violate the right to
assem ble and dem onstrate which is not in accor dance with the Constitution of T imor Leste.
Article 5 in this law places res trictions on ass emblies and dem onstration in term s of distance
from other location s, in practice th e circum stan ces im posed m ay result in dem ons trations not
being ab le to be held in m ost parts of Dili. Th is sam e artic le a lso con tains restric tions on the
location and purpose of de monstrations which may prevent people from conducting effective
This draft law does not contain adequate guarant ees on police activ ities in regard s to perform ing
their duties properly and only using force in a proportional m anner. According to this draft law ,
even if a demonstration is pea ceful, but it is conduc ted outside of working hours then the police
are perm itte d to inter rup t it. There is no def initio n of interrup tion tha t can occur and it m ay result
in the s itua tion tha t th e polic e ca n engage in acts th at violate th e hum an rights of the
dem onstrators. For instance, if the dem onstrators do not f ollow the restrictions se t out in Artic le 5
or 6, and proceed to co nduct a demonstration w ith in a d istance of 500 m eters from the airport,
although en gaging in a peaceful dem onstration; the po lice m ay use force to stop that
dem onstration. JSMP believes that an inclusion m ust be m ade to regulate the actions of police in
accordan ce with the international standards for law enforcem ent of ficers – “Basic Principles on
the Use of Force and Firearm s by Law Enforcement Officials ”.1 These principles are referred to
in gre ater d etail in th e discuss ion contained in Section 7. In gene ral th ese pr incip les requ ire th e
police to lim it their force to the m inimum e xtent necessary– fo r exam ple to avoid the use of
firearm s in all circum stances unles s their life or the life of another person is threatened. 2
1 Ad op ted b y the Eigh th Un ited Natio ns Cong ress on the Prev ention of Cr ime an d the Tr eat ment o f Offenders,
Hava na, Cuba, 27 Au gust to 7 Se ptem ber 1 990. 2 Refer to Pri nciples 9, 1 3 and 14 , “Basic Principles on t he Use of Fo rce a nd Firearm s by L aw E nforcem ent
According to Article 1 5 of this draf t law a crim e is comm itted if any person interf eres in a
dem onstration or joins in a dem ons tration in violation of the rule s se t out in th is law, and th e
perpetrato rs will be punished pursuant to articles in the Indo nesian Penal Code. However these
article s in th e Penal Cod e ref ers to d ifferent ac ts than tho se in this draf t law. JSMP believ es th at
Articles 15.1 and 15.2 could be used to oppress th e community and therefore should be rem oved.
JSMP notes that this draft law is significantly m ore restrictive than the equivalent Portuguese
law, decree law 406/74 of 29 August 1974, on which it is based. The East Tim orese law is far
more restrictive than the Portuguese decree law in relation to the tim es demonstrations can be
held, the purposes for which they can be held, wh ere they can be held and what distances they
have to be from certain p laces (for ex am ple th e Portuguese law only place s a restrictio n of 100
meters – as opposed to 500 m eters in the draf t East Tim or law – on the distance between the
dem onstration and specified places ).
JSMP has pr epared this report in a very short period of tim e for th e benefit of the parliam ent who
will cons ide r the af orementioned dra ft law. JS MP has only provided analys is on those a rticle s
which m ost need am ending. JSMP feels that this law is not necessary for Tim or Les te because
other laws can be used to regula te issues relating to dem onstra tions. However, if the governm ent
wishes to pass this law , JSMP believes it would be advisable for the governm ent to consider
am ending the articles discussed below.
2. Recommen dations
JSMP recommends the following:
Recommendation 1 – On Article 5
Articles 5.1 and 5.2
JSMP believes that the prohibition on holding asse mblies and dem ons trations in public places
that are situated less than 500 m eters away from specific locations is too severe . JS MP realizes
that it is v ery dif ficult to de term ine a proportional lim it on distance, but demonstrations
conducted outside the perimeters of govern ment institutions and other determined places
could be considered to be at a distance which is proportional to guaranteeing the balance between
order, peace and quiet and the ri ght to assem bly and expression.
JSMP notes that if this a rticle is not changed it will ef fecitv ely m ean that dem onstrations will not
be perm itted in m ost areas in Dili as decrib ed on the diag ram included in the repor t on page 9.
Artic le 5.3
JSMP belie ves tha t th is article sh ould be am ended to o nly prohib it acts c ommitted during
dem onstrations that infringe upon the privacy of governm ent officials or other public bodies.
Recommendation 2 – On Article 6
JSMP proposes that this article shoul d incorporate the following sub-article;
“Dem onstrations m ay be perm itted outside of the presc ribe d tim es in the event th at the re ar e
particular circum stances which require activi ties outside the usual hours, conditional on the
provision of a verbal notifica tion at p olice h eadqu arters”.
Recommendation 3 – On Article 7
JSMP proposes that this article shoul d incorporate the following subsection :
“Police m ust avoid the use of force unless this is absolu tely necessary, and when there are no
other practicable m eans of dispersal and to the m inim um extent nece ssary. This is so even if the
dem onstration is in violation of the law. If th e assem bly becom es violen t police shall avoid the
use of firearm s if less dangerous m eans of dispersa l are available, and unless the us e o f such arms
is in accord ance with th e requirem ents provided for in Principle 9 of the Basic Principles on the
Use of Forc e and Firearm s by Law Enforcem ent Officials: that is, polic e shall on ly consider the
use of firearm s in self-defence or d efence of oth ers ag ains t threats to lif e or s eriou s injury. The
action s of the polic e in b oth dete rm ining whether to disperse a dem onstration, and in the manner
of that actu al dispersal, m ust be pr oportion al to the extent of illegality in the demonstrato rs
Recommendation 4 – On Article 15
These penalties are too severe because they can underm ine the right of an individual to
participate in a legitim ate dem onstration due to fear of punis hment. In ad dition, the activ ities
considered to be in violation of this law are ex trem ely broad in nature. JS MP is concerned that
this law m ay be used to oppress the comm unity of Ti mor Leste. Therefore JSMP recommends
that subsections 15.1 and 15.2 be removed.
3. Article 5: R estrictions
Article 5, Subsection (1)
It is prohibited to hold assemblies and demonstrations in public places that are situated less than
500 meters away from state orga ns, official resi dences of holders of pos ts in state organ s,
militar y buildings, priso ns, diplomatic represen tations and h eadquarters of politica l parties.
There are two im portant m atters that need to be discussed in relation to Article 5, Subsection (1),
firstly the restriction of dist ance for holding assem blies and de monstrations, and secondly the
locations wh ich m ay constitu te the ta rgets of demonstra tions.
JSMP believes that the distance sp ecified in A rticle 5, Sub section (1) rest ricts too severely the
right to assem ble or dem onstrate. The rest riction on d istance betw een the m any specified
locations and the dem onstrators is not reasonable or proportional. This di stance will not enable
the comm unity to exp ress the ir aspir ations to th e public institutions which m ay be considered as
targets/recip ients of the public m essage, notw ithstanding accurate calculations, this law is
intended to prohibit de monstratio ns. To illus trate the im pact of Article 5, Subs ection 1, the
diagram on the page 9 describes how such a restri ction on distance for dem onstration s within the
city of Dili c ould be applied.
Dem onstrations are the realization of the freedom of asse mbly (and expression) as guaranteed in
the Constitution of Tim or Leste 3 and international hum an rights instrum ents 4. The Constitu tion
only restricts the use of weapons in dem onstrati ons or sim ilar activities , without the need for
authorization to conduct a dem onstration. This law should refl ect the c onstitution 5, however
JSMP believes that Article 5 of the (draft) law does not convey the spirit of the constitution,
which in principle gu arantees and respects the ri ght of assembly and ex pression. JS MP does not
understand the reason w hy a restriction on distance has been set out in this la w. However, if such
a restriction has been established due to considera tions on the security and order of public places,
then JSMP believes that the restriction on distance should not be intended to restrict the right t o
assem ble or dem onstrate as guaranteed in the Constitu tion. J SMP also understand s that the right
to assem ble should not interfere with the freedom (right) of others to work etc, and therefore the
proposed distance should be proportional, without any intention of restricting the right to
assem ble. JSMP realizes that it is very difficult to establish a proportional lim it, but
demonstrations conducted outsid e the p erimeter of government institution s could be
considered to be at a p roportion al d istance that guarantees th e balan ce be tween the considera tion
of order, peace and quiet and the right of assem bly and expression.
3 Article 42 of t he C onstitu tion of Tim or Lest e, Su bsectio n 1 states th at “everyone is gua ranteed t he free dom to
assem ble peacefully and unarmed, without a nee d for pri or authorisation” an d s ubsection (2) states t hat “every one is
recognised t he right to dem onstrate in acc ordance with the l aw”. 4 For ex am ple, Article 19 of the ICCPR protects th e ri ght to freed om of expression wh ilst Article 21 protects th e
right of peaceful assem bly. 5 Article 42, Sub section 2 of the C onstitu tion “ev eryon e is reco gn ised th e rig ht to d emonstrate in acco rdan ce with the
Article 5, Subsection (2)
It is also prohibited to hold assemblies less than 500 meters aw ay from ports, airports,
telecommunication’s buildings, power stations , water depots, fuel and other inflammable
JSMP believes that perhaps the restriction on distan ce f rom specif ic loc ations set out in Artic le 5,
Subsection ( 2) was inten ded to prev ent the r isk of fuel depots and othe r i nflammabl e mat erials
catching alight, which is perhaps an im portant c onsideration intended to avoid potential risks.
Nevertheless, fuel depots and ot her inflamm able m aterials appear to b e abs trac t in natu re an d
could give rise to m ultiple inte rpre tations. A large num ber of fuel depots and stalls s elling
inflamm able m aterials are spread though out Timor Leste. For exam ple, this article could be
applied to p rohibit demonstrations in front of th e Australian em bassy because a larg e num ber of
fuel stalls are located on th e opposite side of the road.
On the other hand, several other locations m ay not pose the sam e level of risks that exists for fuel
depots, and therefore the restric tion on distance should be adjusted accordingly with the level of
risk. JSMP believ es tha t if the leve l/siz e of th e risk/danger had been c onsidered, th en the sam e
restriction on distance would not apply for all of the aforem entione d locations. T he size of the
risk, together with other consid erations and the determ ination of the restriction on distance should
be categorized for each of the ins titutions/bo dies. It is im portan t that the res trictio n on dis tance
in this ar tic le is dete rmined proportion ally a nd not m erely intended to restrict the rights of
individu als or the community wishing to asse mble or express them selves in the institu tion s or
locations th at likewise should not b e restricted from accepting the com munity’s aspirations. F or
instance, the airport is a public place and demonstrations held there should not be prohibited.
JSMP feels that the distance of 500 m eters is no t of correct proportion to allow the community to
express their aspiration s effectively.
Map of Dili- the cir cles indica te so me of the ar eas in which dem onstrations would be prohibited
due to their distan ce of less than 500 m eters from places d esig nated in the draft law.
Article 5, Subsection 3
It is prohib ited to hold a demonstration with the aim of challenging cons titu tiona l order, putting
at risk democratically elected organs and institutions.
JSMP believes that th is article co ntrad icts d emocratic va lues which guarantee the r ight to
freedom of assem bly and expression as part of the m eans to challenge and control the
perform ance of the governm ent or other public institu tion s. The essence of this article is su ch as
to include a prohibition on protesting for and re questing the dism issal of the cabin et who m ay
have comm itted a great wrong (for instance corr uption). T his m akes it very difficult for the
community to con trol p ublic bodies who are su ppos ed to b e accoun tab le to th e people, and for
this r eason J SMP believ es that this a rticle shou ld be am ended and the only acts committed during
dem onstrations that should be prohibited are th ose that infringe upon the privacy of governm ent
officials or other public bodies.
Article 5, Subsection (4)
Without prejudice of the right to criticize, it is prohibited to ho ld assemblies and demonstrations
that intend to offend the honour and reputation of the Head of State and of those that hold
position s in state organ s.
Generally speaking JS MP is in support of this ar ticle as it in essence prohibits a person from
personally attacking or defa ming the good character of the Head of State, governm ent officials or
other governm ent bodies. Nevertheless, the word ing ‘offending the honor and reputation of the
state and the head of state’ app ears to be ve ry va gue and m ay give ris e to m ultiple interpr etation s
that m ay encourage interference from government agencies in de monstrations. For exam ple ,
should a person who is de monstrating about susp ected corruption in the presidential body be
catego rized as attacking the honor of the president because that particu lar body is headed by the
president? JSMP believes that although it m ay be possible to de monstrate against actions taken
by government agencies, it is also of concern that, at the very least, this law grants authority to
law enforcem ent officers to in terv en e in such d emonstration s based on a n inte rpre tation tha t the se
police or other agencies have been granted this authority pursuant to this law.
4. Article 6: T ime Restrictions
Demonstrations may only be held between 8.00 and 18.30.
JSMP believes that the tim es specified which aim to restrict dem onstrations to working hours are
understandable because the authorit ies are trying to take into c onsideration the overall safety and
security of the community. The aforem entioned tim e restrictions are gen erally in acco rdance with
norm al circum stances. However, the 18.30 time re striction does not provide for circum stance s
where there m ay be a need for a demonstration outside these hours. This article has not m ade
provision for specific is sues and co nditions that arise of an im portant or urgent nature and are
encountered outside of the afore mentioned tim es. This article therefore restricts the right of
dem onstration and the corresponding expression of opinion as an ac t that can only be perform ed
at certain tim es. For exam ple, if a person was arriving from overseas or a national parliam ent
session on policy form ation was to be held at the unusual tim e of 7.30 pm, in these instances the
dem onstrators would not be able to express their aspirations and opinions at these events due to
the aforem entioned tim e restrictions.
According to this draft law, acts su ch as t hose comm itted recently by a num ber of people who
were dem onstrating past 6:30 pm at the Austra lian em bassy about the A ustralian Governm ents’
policy on the m anage ment of the JP DA, would be categorized as crim inal, and the perpetrato rs
would be facing a m aximum of 6 years im prisonm ent.
In summ ary, JSMP is of the opin ion that the right of freedom to dem onstrate and through this the
right to freedom of expr ession has been res tricted greatly by the res triction on tim e. A restriction
on tim e should not be so strict as to outlaw the act of dem onstration which should be able to react
to particu lar circum stances. It is als o im portant that the re is the ability for a dem onstration to
continue f or the dura tio n of the events tha t ar e being demonstrated against. For exam ple, an
im portant session of parliam ent m ay commen ce at 4p m and conclude at 8 pm, and a
dem onstration in response to it should not have to stop at 6.30pm , but rather should be able to
continue up until su ch tim e that the m eeting of parliam ent is f inished.
JSMP believes that this article should take into account othe r circum stances which are discussed
above. In JSMP’s opinion this article should a ppropriately include an exception in the time
dem onstrations can be held in the future. This article should not be lim ited strictly by the
condition of tim e but rather state th at dem onstrat ions m ay be perm itted outside of the prescribed
tim es in the event that th ere are particular circum stances which require activities outside the usual
hours, with the condition that a verbal notif ication is provided at police headquarters.
5. Article 7: Interrup tions
Demonstrations or assemblies orga nized in public places, or that are open to the public, can be
interrupted by decision of the police authority w ho should immediately communicate this to the
competent c ivil authority, if the de monstration s/assemblies are diverted from their original
objective through the practice of unla wful acts or if they violate the restrictions provided in
Artic le 5 of this draft law .
In JSMP’s opinion, this article allows the Police to stop dem onstr ations in certain circum stances.
Based on JSMP’s interpretation, the authority to split-up a demonstration under Article 7 is only
• That dem onstration diverts from its original objective as m anifested though unlawful acts;
• Violations of the restrictions provided in Article 5 occur.
As discussed previously, the right to assem ble and freely express an opinion is protected by the
Constitu tion and international law. Even so, restri ction s on the right to assem ble are perm issible
under Article 24 6 of the Constitu tion and the Inte rnational Co venant on Civil and Politica l Rights
(ICCPR). Consequently, restrictions on the right to assem ble in the dr aft law m ust adhere to
specif ic p rovisions which are se t out in Ar ticle 24 of the Constitu tion and in terna tiona l
Basically, in order to ana lyze the app lica tion of in terna tiona l standard s in the draf t law, two m ain
issues m ust be consid ered: firs tly, are there g rou nds to justif y inte rferen ce by po lic e in Article 7
(the dem onstration diverts from its original objectiv e, or violation of the restrictions provided by
Article 5) which are reasonable and in accordan ce with internation al law; secondly, if the
interference is accep tabl e under international law, th en the interference m ust be reasonable,
proportional and in acco rdance with st andard s of international law.
Grounds for Restricting the Right to Assemble under International La w
Pursuant to Article 2 1 ICCPR, “The right of peaceful assem bly shall be recognized ”.
Nevertheless, this right can be restricted, but m ay be restricted on ly insof ar tha t any such
restrictions are im posed in conf ormity with the law and which ar e ne cessary in a dem ocratic
socie ty in th e inte rests of national se curity or pu blic safety, public order, the protection of public
health or m orals or the protection of the rights and freedom s of others”.
Restrictions concerning Violations of the Law
The f irst res triction pro vided in Article 7 estab lishes that interf erence by Police is pe rm issible if
the dem onstration diverts from its original objective, as stated by the wording unlawful acts . On
the face of it, interven tion in unlaw ful dem onst rations is ap propriate, reasonable an d consis tent
with the restriction provided in Article 21. Ultim ately however, whethe r or not that restriction is
reasonab le and in acco rdance with Article 21 d epe nds on whether the law that th e police claim
has been vio lated by the dem onstrators is also in accordan ce with internationa l law. That is, this
section would seem to authorize the dispersal of a dem onstration for violation of a law even if
that law is in viola tion of intern atio nal s tanda rds. In tha t re gard it is im portan t to bear in m ind
section 9.3 of the Constitution which states that “All rules that are con trary to th e provision s of
international conventions, treaties and agreem ents applied in the internal legal system of Eas t
Tim or shall be invalid.” Furtherm ore, even if the law of which the dem onstra tion is in violation is
consistent w ith international law it is im portant that any intervention by the police on the grounds
of illegality is propo rtio nal. That is, for exam ple, that a dem onstr ation of great public significan ce
not be dispersed for violation of a m inor regulation.
Restrictions concerning Vi olations of Conditio ns
Whether the second ground for intervening in a dem onstration is appropriate depends on the
provision s o f Article 5 – because th e violation of conditions under Article 5 constitutes grounds
6 (1) “R est riction of rights, f reed om s and gua rantees can onl y be i mpose d by law i n order t o sa fegua rd ot her
constitu tio nally p rotected righ ts or interests and in cases cl early p rov ided for by th e C onstitu tio n.
(2) La ws rest ricting ri ghts, fre edom s and gua rant ees ha ve necessari ly a ge neral and a bstract nat ure a nd may not
redu ce t he ex ten t and scop e of th e essen tial co ntents of con stitu tio nal prov isions and shall not have a retro activ e
for intervention by the police. As discussed previ ously, there are m any se rious is sues rela ting to
the restrictions placed on dem onstrations whic h are provided in Arti cle 5. For t he r easons
outlin ed in the section re lated to Article 5 (pages 7-10), those restric tions are outsid e the scope of
the r estric tions perm itted in th e I CCPR and in pra ctice constitute a violation of the right to
assem ble and to freely express an opinion. Consequently, if the proposal for Article 5 is adopted,
then violations of the restri ctions provided for by the aforem entioned article will ju stif y th e
dispersal of the dem onstration by way of the police in violation of Article 21 ICCPR.
The manner of res tricting the righ t to assembly under international law
Even if the grounds for interven ing in an assembly are reasonable, th e manner used m ust be
reasonab le and in acco rdance with standard s o f in terna tion al law. Nam ely, that police action s
must be restricted – their authority is not absolu te. There are international standards on the use of
arm s by pol ice during dem onstrations – na mely th e Basic Principles of the Use of Force and
Firearm s by Law Enforcem ent Offi cials. Article 13 prohibits the use of force by law enforcem ent
officials in the dispersal of asse mblies that are unlawful but non-vi olent. Force can o nly be used
if absolutely necessary, in which case they can only use force to the minimum extent necessary. 7
According to Article 14 law enforcem ent official s m ay use firearm s in the dispersal of violent
assem blies, however such use is only perm issibl e when less dangerous m eans are not practicab le
and only to the minimum extent necessary 8. If the use of firearm s is appropriate, that use m ay
only be in accordance with the c onditions provided for under Article 9. 9
6. Article 15: Other Crimes
Articles 15.1 and 15.2
1. Whoever interferes in an assembly or de monstration preventin g or trying to prevent it
from taking place, commits a crime of disobe dience (article 160 of the Penal Code) .
2. Everyone w ho assembles or demonstrates in violation with the prov isions of the present
law, also commit a crime of disobedien ce (article 160 of the P enal Code) .
JSMP believ es tha t this a rticle is not legitim ate f rom a legal p erspec tive a nd is of detr im ent to the
community as it can be used to oppress them .
7 Pri nciple 13, Basic Principle s on the Use of Force a nd Fi rearm s by Law Enforcem ent Offi cials “In the dispersal of
assem blies that are u nlawf ul but no n-violent, law enf orce ment offi cials shal l avoi d t he use of force or, where that is
not practicable, shall restrict s uch fo rce to t he minim um extent nece ssary. 8 Pri nciple 14, Basic Princi ples on t he Use of Force a nd Fire arm s by Law E nfor cem ent Officials, “In the dispe rsal of
violent a ssem blies, law e nforc ement officials m ay use fi rearm s only w hen less d ang erou s means are not practicable
and only to t he minim um extent nece ssa ry. Law e nforcement officials s hall not use fire arm s in suc h cases exce pt
under th e conditio ns stipu lated in prin ciple 9” 9 Pri nciple 9, B asic Princi ples on the Use of Force a nd Fire arm s by Law E nforcem ent Officials, “Law e nforcem ent
officials shal l not use firea rms agai nst pe rsons e xcept in sel f-defe nce or de fence of others agai nst the imminent threat
of deat h or seri ous injury, to preve nt the pe rpetrat ion of a particularl y seri ous c rime invol ving gra ve threat to life, t o
arrest a pe rson prese nting s uch a dange r a nd resi sting their aut hori ty, or t o preve nt his o r her escape , and only when
less extrem e means a re insuffi cient to ac hieve these objecti ves. In a ny ev ent, in ten tion al leth al u se of firearm s may
onl y be m ade whe n strictly unav oidable in order to protect life.
In this law it is spec ified that whoeve r preven ts (or attem pts to prevent) a dem onstration from
taking p lace comm its a crim e of disobedience pu rsuant to Article 160 of the Indonesian Penal
Code; 10and whoever assembles or demonstrates in vi ola tion o f this presen t law also co mmits a
crim e of disobedience pursuant to Ar ticle 160 of the Indonesian Penal Code. 11
Article 160 of the Indonesian Penal Code states that: “any person w ho orally o r in writing incites
(nam ely encourages or urges) in public others to comm it a punishable act, a violent action against
the public authority or any other disobedience, either to a statut ory provision or to an official
order issued under a statutory provision, shall be punished by a m aximum im prisonm ent of six
years or a fine of 4.500 Rupiah.”
In JSMP’s o pinion, it is important to understand that Article 1 60 relates to ‘inciting ’ illegal
activity and not avoiding, or prev enting, or participati ng in a dem onstration or assem bly. JSMP
believes that the intention of Ar ticle 160 of the Indonesian P enal Code is to punish a person for
ordering or inciting others to pa rticipate in a demons tration, and the aim of the dem onstration
protest violently or protest agai nst ex isting laws. In prac tic e, th e activities which constitute the
above crim e under the Indonesian Penal Code are related to lim ited activities and lim ited people
involved in those activities.
In com parison with Article 160 of the Indonesi an Penal Code, pursuan t to Article 15.1 and 15.2
of the draft law, a person can be punished for a br oad range of activities; su ch as participating in
dem onstrations that h ave a leg itim ate objec tive o r partic ipating in peacef ul dem onstrations which
are in violation of this law.
In JSMP’s o pinion Articles 15.1 and 15.2 are not legitim ate as they are not in acco rdan ce with
the aforem entioned Indonesian Penal Code, for th e reasons m entioned above . JSMP is aware th at
this law, as a law of Timor Leste, has m ore authority than the Indonesi an Penal Code, however
this article incorporates the I ndonesian Penal Code and for that reason this article is legally
JSMP believes that Article 15 is unjust. For ex am ple, a person partic ipating in a peaceful
dem onstration who does not have knowledge of the restrictions appl ying to the right to
dem onstrate, in the event that the said dem onstr ation violates any of those restrictions, can be
given a punishm ent of 6 years im prisonm ent.
In JSMP ‘s opinion, a m axim um punishm ent of 6 years im prisonm ent for a person who
participates in or prevents a dem onstration, as m entioned in Articles 15.1 and 15.2, is too severe.
This punishm ent is too harsh and it can underm ine the right of a person to participate in a
legitim ate dem onstration due to fear of being puni shed. Also the kinds of activities that can be
considered in violation of this law are extrem ely broad. JSMP is concerne d that this law can be
used to oppress the com munity of Timor Leste. F or this reason JSMP recommends that these two
articles should be rem oved.
10 JSMP as sum es that Article 15 refe rs to the Indonesian Pe nal Code , because that is the c ode curre ntly a pplicable in
Tim or Leste. 11 Article 15.2
Authorities that preven t or try to prevent, outside the lega l fr amewor k, the exerc ise o f the righ t to
assemble or demonstrate commit a crime of misu se of power (article 421 Penal Code) and can be
subject to disciplinary sanctions.
Article 15.3 states that an authorit y, such as a state official, w ho prevents or tries to prevent a
dem onstration or assem bly, outside the legal fram ework, can be punished under Article 421 of
the Indonesian Penal Code, which carries a maximum sentence of 2 years and 8 m ont hs
im prisonm ent.
In JSMP’s opinion, these two articles are alm ost co mpatible, as Article 421 relates to an official
preventing a dem onstrati on or other activity.