Press freedom took a blow when the Supreme Court ordered Time magazine last September to pay former president Soeharto Rp 1 trillion (US$109 million) in damages in a libel lawsuit. Time lawyer Todung Mulya Lubis submitted a case review Thursday with the country's top court. He spoke with The Jakarta Post's Andra Wisnu about the case's prospects.
Question: Do you think that Soeharto's death will have an impact on the Time case?
Answer: This is a civil case. If it was a criminal case it would have been closed when the defendant died. Since it is a civil case, it doesn't stop with the death of Soeharto. The liabilities are transferred to his heirs, so the heirs must step into his shoes. Now it depends on them. They have the right for a kontra memori to our proposed review, but whether they would use that right or not, it's entirely up to them.
Now if they don't, the review would be sent to the Supreme Court, who would then assign judges. The presiding judge for our case then was German Hudian and he had two member justices. German was a junior justice on military laws. At the case review level, the panel of judges must be made up of senior justices.
Will Soeharto's death help reverse the Supreme Court verdict?
We don't see this case as simply a matter of Time versus Soeharto. This case is a reflection of the conflict between press freedom and the authoritarian control of the press.
What makes you sure that the Supreme Court will accept your request?
We are optimistic because we know that Time has not broken any laws. Time complied with all journalistic rules. It covered both sides. It wrote the piece for public interests. And nobody could prove that Time had any malicious intent against Soeharto. The Supreme Court's decision, which shocked the media in Indonesia and around the world, was wrong and weak.
The Supreme Court has consistently made the right choices in supporting press freedom in Indonesia. The latest one being the libel case of Tommy Winata versus Tempo, when judges said that in cases concerning the press, apply press laws, don't use civil laws.
In our case, they ignored their own ruling. The court applied Article 1365 from the Civil Code. Moreover, that article, which is a generic law, was mixed in with Article 1372, which is a more specific law.
This combination is legally incorrect. Article 1365 requires only material compensation, while Article 1372 requires non-material compensation. But the verdict states that Time broke Article 1365 and yet the compensation was based on Article 1372. This in itself is wrong.
Second, the Supreme Court could not prove that Time committed libel. They could not prove the existence of malicious intent and reckless disregard. They basically could not prove that Time had defamed Soeharto because before Time even came out with the report there had already been a lot of negative news on Soeharto. What else is there to defame?
And then, what grieves us most is that the Supreme Court did not take into consideration the element of public interest. In Article 1376 of the Civil Code, any news reports done for the sake of public interest is not considered a criminal offense. News on corruption and human rights violations is not an offense. All such reports serve the public interest. That's an established common truth.
When Time wrote the news on Soeharto's alleged corruption, Indonesia already had a People's Consultative Assembly decree mandating the government to investigate corruption cases involving Soeharto and his cronies. We also know the national and foreign media had published reports on his graft cases. Time was not the first.
Last, the most important thing here is that every case involving the press must use the Press Law, like that of Tommy Winata versus Tempo. We believe that this is reason enough for the Supreme Court to reverse itself and restore press freedom, which is currently under threat from its decision.
What are the new points that you have introduced in the case review?
There are six methods you can use to propose a case review. The mass media mostly talk about the novum method -- the existence of new evidence -- but that's just one of the six. What we want is a legal review, (which serves to) point out a fault in the judgment.
This is the memorandum for our case review. It is 103 pages. We submitted that yesterday (Thursday).
How will the Supreme Court decision affect the legal standing of the Indonesian press?
Yes, well, I believe this case is widely watched, closely watched -- not only by the media community, but also by human rights activists, by civil society, even by anti-corruption bodies. Because if Time is punished, or is found guilty, it will weaken all the reform campaigns. It will weaken all democratic movements in the country because a pillar of democracy and reform is the freedom of the press.
So, this has really become a test case for the Supreme Court to prove that, yes, the reform movement in Indonesia really is backed up by freedom of the press. So there's really no room left to move backward, for a setback.
Will the case ever go to international court?
That would depend entirely on Time. We cannot give an answer to that. What is most assured is that Time stands by its publication.
Here in Indonesia we are not thinking of losing. This is a winning case. When we lost, millions asked how could we have lost? We won in both the district court and the high court. Normally if we win in those two, we would win at the Supreme Court level, although if we have lost in one of the two (lower courts) then it can go either way .... But we won both.
