Wed, 03 Aug 1994

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.