Part 2 of 2: Defendant's statement: A journalist accused

Bambang Harymurti, Jakarta

Before filing charges against the press, a person who considers themselves defamed has the right to reply and the right to correct. In fact, this right to correct belongs not only to the party involved, but to the public in general. Questions often arise regarding the choice that exists -- whether a right is exercised or not. If viewed partially, this leads to a flawed understanding. These rights must be seen in the whole context, which includes the media's "obligation to serve" these rights. Obligation implies a sanction if not fulfilled.

Thus, if viewed properly, it is reasonable that these "rights" are conferred to the injured party, because if a "right" is claimed, the media is obliged to serve it. If, on the other hand, the "obligation" was on the side of the injured party, then the injured party would be penalized if it did not fulfill the obligation, and, thus, be hit by a double jeopardy.

Those who are aware of mistakes in press reports and do not use their right of reply or right to correct are not conscientious citizens because by omission they allow wrong information to be disseminated to the public.

In my view, if the right to reply and the right to correct are not exercised, then these parties should forfeit their right to sue. This school of thought prevailed among Supreme Judge M Yahya Harahap, Supreme Judge H. Yahya and Supreme Judge Kohar Hari Soemarno when they ruled against the plaintiff in the case of Anif vs. Harian Garuda daily on the grounds that the plaintiff did not use his right of reply (Supreme Court decision number 3173/K/Pdt/1993).

It is this kind of uniqueness that makes it imperative that a special press law such as law No. 40/1999 is enacted.

The trial of this case has been proceeding for more than a year. Even though I consider that the handling of this case by the police and the prosecutor a wrongful application of the law, full of non-legal interventions, I am acceding to it as an intensive learning process. Perhaps it is the equivalent of lectures to get four credits over two semesters.

History is now knocking at the door of Your Honors' consciences, opening up the opportunity to engrave a milestone in this nation's history with gold, or to smear it with shame. I understand that the Press law is not perfect, that it has shortcomings in being firmly declared as lex specialis. However, this does not mean that Your Honors cannot practice judicial activism and consider it lex specialis. Because this time of reformation needs rejuvenation of the interpretations of the law, many of which are tens, if not hundreds, of years old. As was said by Lord Denning, a famous judge in Britain who died just five years ago, "Give me bad law and good judges and I can deliver justice. But give me good laws and bad judges and I cannot."

Possibly we are naive, but we honestly feel that we can play a role in helping to overcome this nation's nervousness about practicing democracy. As journalists, whose task from day to day is to convey information to the public, we feel challenged to play a participatory role in supplying the public with information that is relevant, credible and timely.

We believe the public's capacity to make decisions and the quality of those decisions is dependent on the information that they obtain before these decisions are taken. If the people cannot get the necessary information, it is likely their decisions will not be the right ones. If mistakes in taking decisions often occur, then the self-confidence of the man in the street concerning his capacity to play a participatory role in the democratic process will continue to slide so it is not impossible that this might at one point completely vanish. If that happens, the democratic fatigue syndrome will then surface.

The longing for a strong and authoritarian governance would then grow among the simple folk slumped in hopelessness, and this nation would then be again trapped in the grip of another authoritarian regime that, if we refer to history, would end up in national decline.

This happened to the German nation ahead of its election of Hitler as the top leader of that country. It also happened in Italy and led to the dictator Mussolini assuming control and developing a fascist governance. We all know that these two leaders took their nations to the brink of extinction. We of course do not want that to happen to the Indonesian nation.

History is now knocking at the door of Your Honors' consciences, giving you the opportunity to make a decision that will either engrave a milestone in this nation's history with gold, or instead smear it with the charcoal of shame.

I am certain Your Honors will of course choose whatever is best for this nation, even though I know that this is no easy choice and is not one without risks. Nevertheless, this is all just to bequeath a better Indonesia to our children and grandchildren, which is indeed the task that we all in our generation share.

The article is an excerpt of Tempo news weekly chief editor Bambang Harymurti's defense note read before the Central Jakarta District Court on Aug. 16, 2004 (See www.tempointeraktif.com). Bambang and two other journalists from the weekly are being charged with provoking unrest and defamation against businessman Tomy Winata.