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.