Draft Law on Freedom of Assembly Potentially Violates Constitution

On 27 September 2004 a bill regulating demonstrations and assemblies, Draft Law 29/I/ 3 - Freedom of Demonstration and Assembly ("Bill"), was presented to the parliament by the government. The Bill purports to regulate demonstrations and protect the underlying rights to freedom of peaceful assembly and expression. However, the Bill imposes a number of severe restrictions on those rights. JSMP welcomes the introduction of a law which recognizes and regulates basic human rights critical to the functioning of an open, democratic society. Nevertheless, in JSMP's view, the Bill infringes these fundamental rights in significant ways by imposing excessive
restrictions which effectively prohibit legitimate and peaceful demonstrations at virtually all public locations within Dili. JSMP therefore requests Parliament to urgently reconsider and amend the Bill in a manner consistent with the state's obligation to respect the right contained in the Constitution and the International Covenant on Civil and Political Rights

In JSMP's view the most critical article in the Bill is article 5 which places far-reaching restrictions on the rights of expression and assembly. Section 6 also imposes unacceptable time restrictions on these rights. In short, under these provisions, demonstrations are prohibited if held:

· Within 500 metres of state organs, office holders within state organs, military buildings, prisons, diplomatic representations, headquarters of political parties, ports, airports, telecommunications buildings, power stations, water depots, fuel and other inflammable materials;

· With the aim of "challenging constitutional order, putting at risk democratically elected organs and institutions"; or

a.. Other than between the times of 8.30 a.m. and 6 p.m.

The limitation on distance will effectively restrict demonstrations to remote, outlying areas of Dili and prohibit demonstrations in popular public assembly areas (for example, and somewhat ironically given the name, on
Avenidos Direitos Humanos in front of Parliament).

Furthermore, the reference to "challenging constitutional order" is ambiguous. It would be impossible to objectively identify whether or not a given demonstration "challenged the constitutional order". In any event, the function of the rights of expression and assembly is surely, in JSMP's view, to promote public challenges to "democratically elected organs and institutions", provided that they are carried out in a peaceful manner. This restriction effectively suppresses all meaningful public debate and completely undermines the rights which the Bill claims to protect.

In addition, the time limit, although confined to working hours and on the face of it reasonable, does not take into account unexpected and legitimate causes for demonstration (for example, arrival of a foreign dignitary or a
parliamentary session which continues after 6.30 p.m.) which do not conveniently take place within the time limits.

The Bill also authorizes the police to disrupt and terminate a demonstration if the conditions imposed under article 5 are violated or the demonstration is otherwise unlawful. However, the Bill does not specify the manner in which the Police may disrupt the demonstration. For example, physical violence on the part of the Police may be acceptable under the law. This is clearly of concern in Timor Leste given recent experiences. International
law imposes standards for the use of force and firearms by law enforcement officials. The Bill needs to incorporate these standards or, at the very least, ensure that there is clear provision for the circumstances and manner
in which force can be used by the Police.

The effect of the restrictions, and the grounds for police intervention, are exacerbated by the fact that persons who are found to be in violation of the Bill are deemed to have committed a crime punishable by a maximum of 6 years
imprisonment. The fact that a person could potentially be imprisoned for up to 6 years for simply exercising their right to demonstrate (for example, demonstrating in a way which "challenges the constitutional order") is in
JSMP's opinion not only unacceptable but represents a grave threat to the civil and political rights of Timorese citizens and to democracy in Timor Leste.

Restrictions to the rights of expression and assembly are permissible under the Constitution and international law but only to the extent necessary to ensure protection of other rights or if in the interests of public safety
and only if the measures taken are proportional to those objectives. The restrictions under the Bill are clearly excessive and potentially violate the constitutionally and internationally guaranteed rights to freedom of
expression and assembly. The Bill therefore ought to be reviewed and comprehensively amended to ensure the protection of these rights.