The umpire strikes back

Nono Anwar Makarim, Jakarta

A court of appeals recently reaffirmed a lower court's decision to send the chief editor of a leading news magazine to jail for a year. He was sentenced for defaming a local businessman. Two journalists in Lampung will go to jail this week for nine months, unless their lawyers register their appeal in time.

The pair wrote a story suggesting that Golkar dignitaries were embezzling public money in the province. The local big shots then filed a defamation complaint with a police. The journalists argued their innocence and said they would go to court to prove it. Later famous human rights activist is alleged to have been caught in the act of bribing a state official.

The Aceh Governor, meanwhile, gets a 10-year jail term for purchasing an intentionally overpriced helicopter. Two convicted murderers of a businessman break out of jail, and the cracks in political parties widen as the government sets up more anticorruption committees.

To round it all off a former intelligence chief flatly refuses to be summoned by a team installed by the President to investigate the political murder of a leading human rights activist in the country.

It is that time of the year again. They have a name for times like this in English, The Ides of March. The Indonesian translation would read like The Ides of March, April, May, June,. . . . July . . . . . August . . .

In Indonesia, and I suspect in many other countries too, defamation is a criminal offense. Even if you're out to bankrupt the defamer through a civil suit for damages, the judge will still go to the Criminal Code to answer the question: "Was the (offending article) intended to ruin someone's good name in this instance?"

With newspapers Indonesian judges have an easy time: Here publication is intent. It may appear odd that one has to go to jail for saying something bad about another person. The theory in the 19th century was that a person's good name is synonymous with assaulting the person physically, perhaps worse. A person's good name is so important that, like innocence, it is presumed until proven otherwise.

In Indonesia, a local thug can file a complaint against an honest person for directing a defamatory accusation at him, and be successful in sending the upright man to jail, even if the accusation is true. Truth in this case is not relevant. An insulting allegation remains a crime, but is not punishable if it is made in the public interest. To decide whether the defense of public interest is admissible, a judge may, but is not obligated, to delve deeper into the truth of an allegation.

But public interest is universally interpreted by courts in a strict way. The judge will invariably ask whether the truth cannot be disclosed in other, non-defamatory ways. This is no help for the media. If the fact of publication is synonymous to intent to defame, and if disclosure is to be done in ways other than by publication, journalists may as well pack up and do PR work for judges.

In a social-political context where university students and NGOs move in erratic waves of activism, and political parties seem more interested in themselves than their constituency, the role of the media as pressure for reform is indispensable. If eradicating corruption is No. 1 on the list of priorities of the government, and the media functions as prime mover in anti- corruption campaigns, we now witness the law and judiciary acting as inquisitors against such campaigns.

It is unbalancing the scale of justice if the public interest to reduce corruption is outweighed by the loss of good name of individuals, no matter how liberal our views of civil rights are. The law limits victims of defamation to people. At the same time it also provides that only people can commit crimes, including the crime of corruption. If it now penalizes the media for bringing cases of corruption to light, we may now have a situation where the law undermines itself. What can be done about this unfortunate construction of circumstances?

First of all the media needs to be taught to use fair and legally correct language when it writes about people.

Second, the Supreme Court should consider issuing a circular addressed to the judiciary ruling that in the matter of media defamation, seeking reasonable civil damages should be the primary resort of the law. The laws on defamation should aim at restoring damaged images, and not become weapons of vengeance.

Third, the fact that we're an archipelago is no excuse for looking exclusively inward.

We must learn to see how other nations have dealt with the same laws. The Dutch, from whom we inherited our law codes, including the defamation laws, have done away with jailing journalists.

They have done so by, first, weighing the relative importance of the clashing interests between the interest of a free flow of opinions and the protection of honor of the individual. And second, by deciding that payment of damages is enough of a punishment for the defamer and sufficient protection of the defamed. No more jail terms for the gentlemen of the press. The free flow of ideas and opinions must not be hampered in a democracy.

One can almost hear the clamorous protests of patriotic justices and MPs: "We're ridding ourselves of old Dutch laws by importing new Dutch laws?" Worse, "Holland has a liberal Constitution which is in contradiction to our 1945 Constitution". For those who don't know it, "liberal" and "liberalism" are dirty words in the Indonesian political lexicon. To these protestations we should respond: "If the Netherlands experience is not to be replicated, how about following in Japan's footsteps where similar laws exist on the books?"

If that is rejected, as well, on the theory that rich countries can afford the tremor of big changes, we should be able to persuade the Indonesian judiciary to take the Korean judiciary as example. Both Japanese and Korean courts are well on their way of doing away with jailing journalists, and granting reasonable damages. Both Japanese and Korean courts consider a free press, and the free flow of opinion and ideas, imperative for the proper functioning of democracy.

For democratizing Indonesia it should also be sufficient to award reasonable damages to victims of defamatory accusations, in addition to the compulsory publication of the court's judgment. The judiciary should not allow the courts to be used as retributive venues, and the media should try and be as responsible as possible when reporting cases.

Umpires, whether the judiciary or the media, should not strike back at what they wrongly perceive as threats to their recently acquired independence.

Dr. Makarim is counsel to the Makarim & Taira S. law firm. He also heads the Aksara Foundation's executive board.