Considering the public health emergency caused by Covid-19 and the need to take measures to prevent and combat the expansion of this pandemic, the President of the Republic of Timor-Leste declared, by Decree no. 29/2020, of 27 March, a state of national emergency, which has been renewed thrice through Decree no. 32/2020, of 27 April, Decree no. 35/2020, of 27 May and Decree no. 55/2020, of 5 August. The following are some of the essential issues of this regime and the way in which they have been implemented in the respective declaration.

 

What is a state of emergency?

After hearing the Government and obtaining the Parliament's authorization, the President of the Republic may declare a state of emergency, which allows ordering the partial suspension of the citizens’ rights, freedoms and guarantees based on the occurrence (or threat) of a public disaster. A state of emergency can only be declared if a public disaster occurs or is threatened.

The state of emergency framework is laid down in Articles 25, 85(g), 95.2(n) and .3(j) and 115.2(c) of the Constitution of the Timor-Leste Republic, and in Law 3/2008, of 22 February.

 

What are the potential impacts?

In practical terms, the declaration of a state of emergency may involve the partial suspension of certain rights, freedoms and guarantees, as ordered: e.g. a ban on travel or on engaging in certain personal or business activities. If necessary, civil administrative authorities can have their powers reinforced and be supported by the Armed Forces.

The declaration of a state of emergency grants public authorities with reinforced powers to take the necessary and adequate measures without observing any formalities (e.g., the Ministry of Health’s power to requisition human or material resources from private-law businesses). Obviously, as a rule, the declaration of a state of emergency must abide by the principle of proportionality and be limited, in particular regarding its scope and duration and the resources used, to what is strictly necessary in view of the specific circumstances.

 

Can the State adopt just any measure?

The state of emergency cannot affect rights of superior constitutional dignity identified in the law and the Constitution. In particular, the declaration must abide by the principle of equality and non-discrimination, and some basic criminal procedure guarantees (e.g., against illegal arrests and detention) and access to courts. Moreover, it may not impose prior censorship of the media, or prevent meetings of the statutory bodies of political parties, trade unions and professional associations.The declaration of a state of emergency may in no event affect the rights to life, physical integrity, civil capacity and citizenship, non-retroactivity of criminal law, defense in criminal proceedings, freedom of conscience and religion, immunity from torture, slavery, servitude and cruel, inhuman or degrading treatment or punishment and from discrimination.

As for its content, the declaration must specify which rights, freedoms and guarantees are suspended.

In the present case, the declaration of the state of emergency partially suspended the following rights (Article 4 of the Decree of the President of the Republic no. 55/2020):

a) International mobility (health controls may be implemented at ports, airports and border checkpoints, including the enforcement of compulsory confinement of people) as well as the implementation of the necessary measures to ensure the international passage of essential goods and services);
b) Freedom of movement and of establishing residence anywhere within the national territory (restrictions such as compulsory confinement at home or in a health facility or establishment of sanitary fences); and
c) Right of resistance (ban on any and all acts of active or passive resistance to orders issued by the competent public authorities in execution of the declaration of the state of emergency).

 

Can measures be imposed to just some parts of the territory?

A state of emergency may be declared regarding all or part of the national territory and must only be declared regarding such area or territory where the measures are deemed required to ensure or restore normality. Among others, measures can be adopted to restrict circulation or impose forced quarantine in certain areas.

In the present case, the declaration of a state of emergency applies to the entire national territory (Article 2 of the Decree of the President of the Republic 55/2020).

 

How long can a state of emergency last?

A state of emergency shall only last for as long as strictly required to protect the rights and interests envisaged and to restore normality.

Maximum duration is 30 days, without prejudice to any renewal for one or more identical periods if the cause which determined it should subsist.

In the present case, the state of emergency started at 00:00am on 28 March and ended at 11.59pm on 26 April 2020 (Article 3 of the Decree of the President of the Republic 29/2020). The state of emergency was renewed, for the first time, on 27 April 2020, such renewal being effective from 00.00 am on 28 April until 11.59 pm on 27 May 2020 (Article 3 of the Decree of the President of the Republic no. 32/2020), for the second time, on 27 May 2020, effective form 00.00 am on 28 May until 11.59 pm on 26 June 2020 (Article 3 of the Decree of the President of the Republic no. 35/2002) and now, for the third time, on 5 August 2020, beginning at 00.00 am on 6 August and ending at 11.59 pm on 4 September 2020 (Article 3 of the Decree of the President of the Republic no. 55/2020).

 

What are the consequences of breaching the measures ordered by the authorities during a state of emergency?

Any person breaching the provisions in Law 3/2008 and in the declaration of a state of emergency (or in its implementation) may incur in criminal liability.

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.