The umpire strikes back

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.