The umpire strikes back<\/p>\n
Nono Anwar Makarim, Jakarta<\/p>\n
A court of appeals recently reaffirmed a lower court's
\ndecision to send the chief editor of a leading news magazine to
\njail for a year. He was sentenced for defaming a local
\nbusinessman. Two journalists in Lampung will go to jail this week
\nfor nine months, unless their lawyers register their appeal in
\ntime.<\/p>\n
The pair wrote a story suggesting that Golkar dignitaries were
\nembezzling public money in the province. The local big shots then
\nfiled a defamation complaint with a police. The journalists
\nargued their innocence and said they would go to court to prove
\nit. Later famous human rights activist is alleged to have been
\ncaught in the act of bribing a state official.<\/p>\n
The Aceh Governor, meanwhile, gets a 10-year jail term for
\npurchasing an intentionally overpriced helicopter. Two convicted
\nmurderers of a businessman break out of jail, and the cracks in
\npolitical parties widen as the government sets up more
\nanticorruption committees.<\/p>\n
To round it all off a former intelligence chief flatly refuses
\nto be summoned by a team installed by the President to
\ninvestigate the political murder of a leading human rights
\nactivist in the country.<\/p>\n
It is that time of the year again. They have a name for times
\nlike this in English, The Ides of March. The Indonesian
\ntranslation would read like The Ides of March, April, May,
\nJune,. . . . July . . . . . August . . .<\/p>\n
In Indonesia, and I suspect in many other countries too,
\ndefamation is a criminal offense. Even if you're out to bankrupt
\nthe defamer through a civil suit for damages, the judge will
\nstill go to the Criminal Code to answer the question: \"Was the
\n(offending article) intended to ruin someone's good name in this
\ninstance?\"<\/p>\n
With newspapers Indonesian judges have an easy time: Here
\npublication is intent. It may appear odd that one has to go to
\njail for saying something bad about another person. The theory in
\nthe 19th century was that a person's good name is synonymous with
\nassaulting the person physically, perhaps worse. A person's
\ngood name is so important that, like innocence, it is presumed
\nuntil proven otherwise.<\/p>\n
In Indonesia, a local thug can file a complaint against an
\nhonest person for directing a defamatory accusation at him, and
\nbe successful in sending the upright man to jail, even if the
\naccusation is true. Truth in this case is not relevant. An
\ninsulting allegation remains a crime, but is not punishable if it
\nis made in the public interest. To decide whether the defense of
\npublic interest is admissible, a judge may, but is not obligated,
\nto delve deeper into the truth of an allegation.<\/p>\n
But public interest is universally interpreted by courts in a
\nstrict way. The judge will invariably ask whether the truth
\ncannot be disclosed in other, non-defamatory ways. This is no
\nhelp for the media. If the fact of publication is synonymous to
\nintent to defame, and if disclosure is to be done in ways other
\nthan by publication, journalists may as well pack up and do PR
\nwork for judges.<\/p>\n
In a social-political context where university students and
\nNGOs move in erratic waves of activism, and political parties
\nseem more interested in themselves than their constituency, the
\nrole of the media as pressure for reform is indispensable. If
\neradicating corruption is No. 1 on the list of priorities of the
\ngovernment, and the media functions as prime mover in anti-
\ncorruption campaigns, we now witness the law and judiciary acting
\nas inquisitors against such campaigns.<\/p>\n
It is unbalancing the scale of justice if the public interest
\nto reduce corruption is outweighed by the loss of good name of
\nindividuals, no matter how liberal our views of civil rights are.
\nThe law limits victims of defamation to people. At the same time
\nit also provides that only people can commit crimes, including
\nthe crime of corruption. If it now penalizes the media for
\nbringing cases of corruption to light, we may now have a
\nsituation where the law undermines itself. What can be done about
\nthis unfortunate construction of circumstances?<\/p>\n
First of all the media needs to be taught to use fair and
\nlegally correct language when it writes about people.<\/p>\n
Second, the Supreme Court should consider issuing a circular
\naddressed to the judiciary ruling that in the matter of media
\ndefamation, seeking reasonable civil damages should be the
\nprimary resort of the law. The laws on defamation should aim at
\nrestoring damaged images, and not become weapons of vengeance.<\/p>\n
Third, the fact that we're an archipelago is no excuse for
\nlooking exclusively inward.<\/p>\n
We must learn to see how other nations have dealt with the
\nsame laws. The Dutch, from whom we inherited our law codes,
\nincluding the defamation laws, have done away with jailing
\njournalists.<\/p>\n
They have done so by, first, weighing the relative importance
\nof the clashing interests between the interest of a free flow of
\nopinions and the protection of honor of the individual. And
\nsecond, by deciding that payment of damages is enough of a
\npunishment for the defamer and sufficient protection of the
\ndefamed. No more jail terms for the gentlemen of the press. The
\nfree flow of ideas and opinions must not be hampered in a
\ndemocracy.<\/p>\n
One can almost hear the clamorous protests of patriotic
\njustices and MPs: \"We're ridding ourselves of old Dutch laws by
\nimporting new Dutch laws?\" Worse, \"Holland has a liberal
\nConstitution which is in contradiction to our 1945 Constitution\".
\nFor those who don't know it, \"liberal\" and \"liberalism\" are dirty
\nwords in the Indonesian political lexicon. To these protestations
\nwe should respond: \"If the Netherlands experience is not to be
\nreplicated, how about following in Japan's footsteps where
\nsimilar laws exist on the books?\"<\/p>\n
If that is rejected, as well, on the theory that rich
\ncountries can afford the tremor of big changes, we should be able
\nto persuade the Indonesian judiciary to take the Korean judiciary
\nas example. Both Japanese and Korean courts are well on their way
\nof doing away with jailing journalists, and granting reasonable
\ndamages. Both Japanese and Korean courts consider a free press,
\nand the free flow of opinion and ideas, imperative for the proper
\nfunctioning of democracy.<\/p>\n
For democratizing Indonesia it should also be sufficient to
\naward reasonable damages to victims of defamatory accusations, in
\naddition to the compulsory publication of the court's judgment.
\nThe judiciary should not allow the courts to be used as
\nretributive venues, and the media should try and be as
\nresponsible as possible when reporting cases.<\/p>\n
Umpires, whether the judiciary or the media, should not strike
\nback at what they wrongly perceive as threats to their recently
\nacquired independence.<\/p>\n
Dr. Makarim is counsel to the Makarim & Taira S. law firm. He
\nalso heads the Aksara Foundation's executive board.<\/p>",
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