Friday, February 7, 2014

Timor-Leste's media law ‘secrecy’ lifted, but draconian content revealed

East Timorese journalists at work ... no more freelancers
under the draft media law? Photo: David Robie

THE PROPOSED Timor-Leste media law is a draconian mixed bag. And it is ironical that such a document with lofty claims of protecting the freedom of the press should be shrouded in secrecy for the past six months.

After being approved by the Council of Ministers last August 6, it has languished in the “don’t touch” basket since then, apart from a critical airing at a conference on the state of the media last October.

And then suddenly, with few copies of the document being in circulation previously, a hurried “consultation" was held with journalist representatives this week. A journalists' submission is expected by Parliamentary Committee A by Monday.

But other people with a stake in the future of media regulation – such as academics, bloggers, book publishers, non-government organisations, political commentators and media users themselves – haven’t yet had a chance to give any input.

While the document contains an interesting attempt to define “duties” of journalists in an evolving new democracy such as Timor-Leste and professes to support freedom of information and the right to be informed, in reality many clauses seek to effectively gag the press and debate.

These reflective comments are based on a "rough translation" of the draft media law from Portuguese and Tetum into English.

Alarming is the attempt to lock in the status and definition of journalists, effectively barring independent and freelance journalism and leaving the registration of journalists entirely to the whim of commercial media organisations.

It would not have worked in any kind of democracy in the days of low-tech newspapers and media publishing. But in these days of digital media, citizen journalism and diversity of critical information online it is tantamount to censorship – the very thing the draft law states opposition to.

Public right
As a freelance journalist myself for a decade reporting in the Asia-Pacific region, I know that some of the best reporting I have ever done is without the constraints of a commercial imperative. Only the public right to know was the paramount goal.

For example, Article 6 apparently excludes non-Timorese citizens from practising journalism and only “education and qualifications” recognised by the proposed Press Council and employed with a media organisation would be acceptable.

Only journalists with a national certificate issued by the national media industry would be recognised. No mention of journalism "education" and professional qualifications that are now the norm in the region.

What would happen to Timorese journalists who have been educated and had media experience abroad?

Also, it seems that under Article 13 a political party-run media organisation such as Fretilin's Radio Maubere would be banned under this draft law, and the role of NGO media - one of the major sources of independent and informed debate on policies in Timor-Leste - would be ambiguous to say the least. 

In Section 8, the conflict of interest with other careers is clearly spelt out. For example, the draft law says the “profession of journalism cannot be performed concurrently” with being a:

•    Government employee
•    Executive in charge of local authorities or community bodies
•    Leader of a political party
•    Public relations or press officer, and
•    Involved in any activity related to advertising or selling goods

Any journalist so engaged in jobs incompatible with their role as a journalist must return their media card to the Press Council. A breach of this article may render a journalist liable to pay a fine of up to US$1000 – or more than a month’s pay in some cases.

It would be interesting to see how this might be policed in practice.

Standard UN stuff
Under Article 3 in a section labelled “fundamental principles”, the draft law declares “all citizens have the right to inform, and be informed, with the ultimate purpose of achieving a free, developed, just and democratic society”. This is standard UN Article 19 stuff and essential - except it should read "everybody" not just citizens.

The following Article 4 about the ”freedom of the press”  says the rights of journalists to report shall be exercised based on "press freedom and creation [of media]", which comprises the following privileges:

•    The right of access to all sources of information, except as provided for by law;
•    The protection of independence and professional secrecy;
•    The editorial freedom; and
•    The right to create media

Article 17 provides for a compulsory public “right of reply” from media organisations. Failure to comply could lead to a fine of up to $10,000.

The most controversial provision (Article 21) of the draft law is to make an “assault on freedom of the press” by a public official or agent of the state illegal and punishable by “up to three years in prison or a fine”. Would this be punished in practice? Unlikely.

Only Timorese businesses will be entitled to own a news media company (Article 13), and Article 11 spells out the duties of a journalist:

•   Contribute to a free and democratic society, combating any restriction on freedom of expression, freedom of the press or any other form of restriction of the right to information for citizens;
•    Contribute to the development of society by informing citizens in an educational, honest and responsible manner in order to promote the creation of enlightened public opinion;
•    To defend the pluralism of opinions, ensuring the ability of expression of the different currents of opinion and respect for cultural, religious and ethnic diversity among citizens;
•    Exercise the profession independently without other major interests beyond the right of public understanding;
•    Always keep the personal rights of citizens, including protecting their honor, dignity and privacy, except when the obvious and unequivocal defence of the public interest is involved;
•    Respect the presumption of innocence of those targeted in legal processes until the final judgment of the courts; and
•    Carry out the activity of journalism with respect for ethical principles of the profession, complying with the rules contained in the Code of Ethics of Journalists.

Another point: Composition of the proposed independent Press Council is unbalanced. Article 22 prescribes three journalists chosen by journalists' organisations legally established in Timor-Leste; two representatives of the owners of the media, chosen by them; and two public figures of "recognised merit" related to the development of the media, chosen by journalists and owners of media organisations.

This group of seven elects the council president, unlike many media councils in other countries that actually have an independent chair or president who is often a retired judge or lawyer.

But what about the ordinary public - the media consumers themselves? They get no representation at all and yet public trust, integrity and ethics are at the core of global debates about the future of media these days.

More thought needed
Seriously, this draft law needs a lot more thought and open debate. It should not be rushed into law with only minimal consultation with selected stakeholders.

The independent La’o Hamutuk research and monitoring NGO yesterday published its own analysis about the draft law, concluding: 
Articles 40 and 41 of Timor-Leste's Constitution guarantee freedom of expression, information and press for all people. Although these freedoms have been in effect (and well-used) since the restoration of independence in 2002, state authorities and international consultants have been working on drafts of laws to regulate the media for many years, often consulting with local and journalists and media organizations. The current draft was approved by the Council of Ministers on 6 August 2013 and sent to Parliament for enactment.

Parliamentary Committees A and C held hearings during the week of 3 February 2014 with journalists' associations, but others who will be affected by the law (academics, NGOs, bloggers, book publishers, users of information, etc) have not yet been consulted.

La'o Hamutuk has many concerns about the draft law, and welcomes advice from experts inside and outside Timor-Leste to help us understand it better and propose constructive revisions.
Café Pacific publisher David Robie was recently in Timor-Leste for a month as a volunteer with the La’o Hamutuk development research and monitoring agency.

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