Legal protection for the ministers and the press

Legal protection for the ministers and the press

By Charles Himawan

JAKARTA (JP): More than 10 years has passed since the American
Time magazine published a news item on Gen. Ariel Sharon, the
then Israeli Minister of Defense.

To this day, as a public figure a minister has always been a
source of news. The public feel they have the right to know what
their ministers are doing, because a minister's action can
influence their lives. This influence may be direct or indirect
depending upon the position of the particular minister.

News about public figures are most salable. The very purpose
of a news publishing enterprise is not solely to seek profit. Yet
the profit aspect cannot be entirely ignored, because it ensures
the livelihood of many journalists. But if these two merge into
one entity it would be different. Perhaps it is difficult to find
a second Katharine Graham of the Washington Post Company.

What Time reported was about the visit of Ariel Sharon to the
family of Basir Gemayel, the late President of Lebanon, to extend
his condolences following Gemayel's assassination on Sept. 14,
1982. But one day after Sharon's visit, the refugees at Sabra and
Shatila were massacred. Fingers were immediately pointed at the
government of Israel, accusing it of involvement in the massacre.

To investigate the case, the government of Israel established
a commission headed by the highly respected Chief Justice Yitzhak
Kahan. On Feb. 8, 1983, the commission reported that Sharon was
indirectly responsible for the massacre. Soon after this finding
was made public, Sharon had no choice but to resign as minister
of defense.

What was witnessed was proof that a government-sponsored
commission will not betray its independence, even though it was
established to investigate the government's own actions. In the
last six months, for example, Indonesia's National Commission on
Human Rights which is also headed by a former Chief of Justice
has sufficiently proven its independence.

Kahan's report was in fact Time's source for the story.
Appendix B of this report, which was not published due to
security reasons, apparently fully itemized Sharon's visit to
Gemayel's family. It was reported that Sharon told the Gemayel
family that Israeli soldiers would enter West Beirut and hoped
that the Phalangists would also enter the refugee camps. Sharon
was said to discuss the possibility of revenge.

One week after Time published its Feb. 2, 1983 issue, Sharon
filed a law suit against Time before an American federal court in
regard to the above news item which eventually became known as
paragraph 22. Sharon called this paragraph a blood libel.

Sharon's action is worth studying. First, Sharon is not a U.S.
citizen, yet he has confidence on the applicable law in the U.S.
He has a reliable legal means to enforce his human rights so that
his good name shall not be tarnished by the press. He has the
right to hold the press responsible for any news published,
particularly if it inclines towards trial-by-press. The existence
of a reliable court and of confidence upon the strength of the
law actually deters Sharon from taking any extra-judicial
actions.

Second, the allegation directed at Time specifically referred
to paragraph 22. It did not allege in general terms about the
defamation. Procedural lawyers have taught us that both in
criminal and civil cases the allegations must be clear and
specific. This is of utmost importance in order that the
defendant may be able to defend himself to the utmost. The press
should also be given ample opportunity to defend itself in
implementing its right of freedom of expression.

In the case of Sharon versus Time, both parties had an equal
legal opportunity before a reliable judicial court. The
Indonesian judiciary has the gigantic task today of extending a
similar opportunity to those who wish to defend their human
rights.

Two recent decisions of the Indonesian Supreme Court in the
cases of Kedungombo and PT Sidobagun in Malang (Kompas 15 and 16
July 1994) have been a heartening development. Unfortunately, one
case seems to have been "castrated" by the Indonesian legal
institution of review or peninjauan kembali (not to be confused
with the American institution of judicial review). Hopefully the
other case will not see a similar fate.

It is perhaps high time for the legislature and the government
of Indonesia to take concrete action so that the `peninjauan
kembali' policy will not be misused, i.e. to prevent it being used
by the losing lawyer to extend the case indefinitely and
eventually "freeze" it.

It appears that both in the U.S. and in Indonesia, it takes a
while before a case can be heard by the courts. On Nov. 13, 1983,
the U.S. federal court in New York under judge Abraham Sofaer
began to hear the case.

Sharon admitted that he had agreed for the phalangists to
enter the refugee camps, but he never expected a massacre. Sharon
then called upon several staff of Time to testify in court.

David Halevy, the Time correspondent who wrote the story
admitted that paragraph 22 was based upon an evaluation and
analysis of the situation on hand. He admitted that Sharon is not
a murderer. And that he failed to recheck with his sources as to
whether or not the content of paragraph 22 was in accordance with
Appendix B. In spite of all this, Halevy seemed convinced that
Sharon must have discussed vengeance. Again, an evaluation and
not a presentation of facts.

Friends of Halevy, who were called upon as witnesses generally
expressed confidence upon the information obtained by Halevy and
upon Halevy's judgment in reporting the news. However, chief
correspondent Richard L. Duncan admitted that in 1976, Halevy was
for a time an advisor to the political opponent of Sharon, i.e.
Simon Peres. Furthermore, in 1979 Halevy was suspended for a
while because of faulty news. These two pieces of information
instilled doubt upon the jury in regard to Halevy's
creditability.

In order to decide fairly, the secret Appendix B must be made
available to both parties. The Israeli government complied under
certain conditions. This is possible because of the legal
strength available to enforce these conditions. In Indonesia it
is doubtful that such a process would be possible. Upon
examination, Appendix B appeared to have made no reference to
vengeance at all!

Since all evidence has been presented, Judge Sofaer asked the
jury to consider three questions. One, whether or not Sharon was
defamed. Two, whether or not paragraph 22 was false. Three,
whether of not paragraph 22 was written and published with
malice.

In response to the first and second issues, the jury agreed
that Sharon was defamed and paragraph 22 was false. But in answer
to the third and most important question which could bring
serious repercussions, the jury found that no malice existed on
the part of Time.

Such a praise worthy decision is possible because of the
availability of reliable judiciary and a dependable enforcement
of the existing legal institutions. In a democratic society,
these two elements deter those who wish to defend their human
rights from resorting to extra judicial means, for example,
military, bureaucratic or financial strength.

As Supreme Court Justice from California, Rose E. Bird once
said "the courts are a safety valve without which no democratic
society could survive".

The writer is a professor of law at University of Indonesia.