Could 'Time' be wrong in its report on Soehartos?

Could 'Time' be wrong in its report on Soehartos?

Soeharto's lawyers have threatened to take Time magazine to
court concerning its reports on the wealth of the former
president's family. Charles Himawan, a member of the National
Commission on Human Rights and professor of law at the University
of Indonesia, addresses the issue.

JAKARTA (JP): In contemplating litigation against a member of
the news media, one must consider several factors: the status of
the plaintiff, the defendant and the reputation of the court of
law. If the plaintiff is a public figure and defendant is a
reputable newsmagazine, the court will not only base its decision
on documentary evidence and witnesses, but also on public
interest, a consideration most judicial courts overlook.

Furthermore, if the court is one with authority, the public,
including the plaintiff and defendant, will readily accept the
justice it renders.

The case of former Israeli minister Ariel Sharon versus Time
is illuminating. When Lebanese president Bashir Gemayel was
assassinated on Sept. 14, 1982, Gen. Sharon, then Israel's
defense minister, visited the Gemayel family to offer his
condolences. The following day, Palestinian refugees at Sabra and
Shatila were massacred. The Israeli government was suspected of
involvement and a commission to investigate the tragedy was
established. Its report indicated that Sharon was indirectly
responsible for the massacre, and he was therefore forced to
resign as defense minister.

There was, however, one document of the report, known as
Appendix B, which for security reasons was not made public.
Nevertheless, Time somehow concluded in its story that Sharon
discussed the possibility of revenge with the Gemayel family.
Sharon's specific contention was with the 22nd paragraph of the
story; students of law have long known that plaintiffs must be
specific in citing their contention.

If Soeharto's lawyers wish to sue Time because of the contents
of its May 24, 1999, issue, then they must also be specific
concerning which of the roughly 44 paragraphs of the story are
false. Chances are small that they all are. If they pick, say,
four paragraphs that they contend are false, this may mean the
remaining 40 are true. The toughest question now emerges: is
Indonesia ready to prosecute those involved, if any, in any
misdeeds cited in the remaining 40 paragraphs?

The trial of Gen. Sharon versus Time opened before the New
York District Court on Nov. 13, 1984. Although it occurred 15
years ago, it is still a valuable example today, particularly for
Indonesia in light of the Soeharto story. As it will become
apparent below, the case is instructive for us all.

During the trial, the journalist who wrote the story admitted
that it was based on "evaluation and analysis" of the situation,
and purportedly on the unpublished Appendix B. He admitted that
he did not ask his sources directly whether Sharon discussed
revenge. To settle the dispute, the Israeli government concurred
it would show Appendix B to the court for examination by both
parties. The conclusion was that the document apparently did not
show that Sharon discussed revenge with the Gemayels.

The court asked the jury to answer three questions: First, did
Time defame Sharon? Second, was paragraph 22 false? Third, was
the story published with malice? The jury answered the first two
questions affirmatively, and hence Time was found to be in the
wrong on two counts.

On the third issue, the jury answered that Time did not
publish the story with actual malice, nor knew it was false and
did not recklessly disregard whether the story was true or false.
Sharon, as a public figure, failed to win damages, but his name
was restored.

In its historic decision, the New York court went further than
simply seeking documentary evidence and witnesses. It took into
account the purpose of publishing the story, to impart
information to the public with great regard for its accuracy. The
court, in fact, implemented one important component of human
rights: the right to seek, receive and impart information and
ideas through any media and regardless of frontiers (Article 19
of the Universal Declaration of Human Rights). There is no
stronger assertion for "freedom of expression".

Hopefully the Indonesian Supreme Court will be able to
supervise the lower courts to render decisions that go beyond
documentary evidence and witnesses. In this manner, the law would
become alive, rather than simply a collection of "black letter
rules" devoid of social aspirations.

In the Sharon case, Time was found wrong in one paragraph of
its reporting. Today, such a mistake is unlikely because in the
last 15 years information technology has developed into
cyberspace. To retrieve a wealth of information, one has only to
punch a key. Second, the recent Asian financial crisis has showed
that international financial traffic is still controlled by the
"Western countries", as is information technology. Third, with
Time's awesome resources, the data needed to write an accurate
story is relatively easy to obtain.

In the present circumstances, perhaps the best way is to
follow the justice minister's call for the government to follow
up on Time's findings, which would be pending action, real
action.