Part 2 of 2: Defendant's statement: A journalist accused<\/p>\n
Bambang Harymurti, Jakarta<\/p>\n
Before filing charges against the press, a person who
\nconsiders themselves defamed has the right to reply and the right
\nto correct. In fact, this right to correct belongs not only to
\nthe party involved, but to the public in general. Questions often
\narise regarding the choice that exists -- whether a right is
\nexercised or not. If viewed partially, this leads to a flawed
\nunderstanding. These rights must be seen in the whole context,
\nwhich includes the media's \"obligation to serve\" these rights.
\nObligation implies a sanction if not fulfilled.<\/p>\n
Thus, if viewed properly, it is reasonable that these \"rights\"
\nare conferred to the injured party, because if a \"right\" is
\nclaimed, the media is obliged to serve it. If, on the other hand,
\nthe \"obligation\" was on the side of the injured party, then the
\ninjured party would be penalized if it did not fulfill the
\nobligation, and, thus, be hit by a double jeopardy.<\/p>\n
Those who are aware of mistakes in press reports and do not
\nuse their right of reply or right to correct are not
\nconscientious citizens because by omission they allow wrong
\ninformation to be disseminated to the public.<\/p>\n
In my view, if the right to reply and the right to correct are
\nnot exercised, then these parties should forfeit their right to
\nsue. This school of thought prevailed among Supreme Judge M Yahya
\nHarahap, Supreme Judge H. Yahya and Supreme Judge Kohar Hari
\nSoemarno when they ruled against the plaintiff in the case of
\nAnif vs. Harian Garuda daily on the grounds that the plaintiff
\ndid not use his right of reply (Supreme Court decision number
\n3173\/K\/Pdt\/1993).<\/p>\n
It is this kind of uniqueness that makes it imperative that a
\nspecial press law such as law No. 40\/1999 is enacted.<\/p>\n
The trial of this case has been proceeding for more than a
\nyear. Even though I consider that the handling of this case by
\nthe police and the prosecutor a wrongful application of the law,
\nfull of non-legal interventions, I am acceding to it as an
\nintensive learning process. Perhaps it is the equivalent of
\nlectures to get four credits over two semesters.<\/p>\n
History is now knocking at the door of Your Honors'
\nconsciences, opening up the opportunity to engrave a milestone in
\nthis nation's history with gold, or to smear it with shame. I
\nunderstand that the Press law is not perfect, that it has
\nshortcomings in being firmly declared as lex specialis. However,
\nthis does not mean that Your Honors cannot practice judicial
\nactivism and consider it lex specialis. Because this time of
\nreformation needs rejuvenation of the interpretations of the law,
\nmany of which are tens, if not hundreds, of years old. As was
\nsaid by Lord Denning, a famous judge in Britain who died just
\nfive years ago, \"Give me bad law and good judges and I can
\ndeliver justice. But give me good laws and bad judges and I
\ncannot.\"<\/p>\n
Possibly we are naive, but we honestly feel that we can play a
\nrole in helping to overcome this nation's nervousness about
\npracticing democracy. As journalists, whose task from day to day
\nis to convey information to the public, we feel challenged to
\nplay a participatory role in supplying the public with
\ninformation that is relevant, credible and timely.<\/p>\n
We believe the public's capacity to make decisions and the
\nquality of those decisions is dependent on the information that
\nthey obtain before these decisions are taken. If the people
\ncannot get the necessary information, it is likely their
\ndecisions will not be the right ones. If mistakes in taking
\ndecisions often occur, then the self-confidence of the man in the
\nstreet concerning his capacity to play a participatory role in
\nthe democratic process will continue to slide so it is not
\nimpossible that this might at one point completely vanish. If
\nthat happens, the democratic fatigue syndrome will then surface.<\/p>\n
The longing for a strong and authoritarian governance would
\nthen grow among the simple folk slumped in hopelessness, and this
\nnation would then be again trapped in the grip of another
\nauthoritarian regime that, if we refer to history, would end up
\nin national decline.<\/p>\n
This happened to the German nation ahead of its election of
\nHitler as the top leader of that country. It also happened in
\nItaly and led to the dictator Mussolini assuming control and
\ndeveloping a fascist governance. We all know that these two
\nleaders took their nations to the brink of extinction. We of
\ncourse do not want that to happen to the Indonesian nation.<\/p>\n
History is now knocking at the door of Your Honors'
\nconsciences, giving you the opportunity to make a decision that
\nwill either engrave a milestone in this nation's history with
\ngold, or instead smear it with the charcoal of shame.<\/p>\n
I am certain Your Honors will of course choose whatever is
\nbest for this nation, even though I know that this is no easy
\nchoice and is not one without risks. Nevertheless, this is all
\njust to bequeath a better Indonesia to our children and
\ngrandchildren, which is indeed the task that we all in our
\ngeneration share.<\/p>\n
The article is an excerpt of Tempo news weekly chief editor
\nBambang Harymurti's defense note read before the Central Jakarta
\nDistrict Court on Aug. 16, 2004 (See www.tempointeraktif.com).
\nBambang and two other journalists from the weekly are being
\ncharged with provoking unrest and defamation against businessman
\nTomy Winata.<\/p>",
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