Bad News for The Press

A court has upheld Tomy Winata's lawsuit against TEMPO. Does this spell the end for freedom of the press in Indonesia?

LAST week, Justice Sunarjo was obviously uncomfortable during the trial of Artha Graha boss Tomy Winata's lawsuit against TEMPO. Sunarjo fanned himself incessantly although a strong breeze was flowing into his courtroom at the Central Jakarta District Court. Sunarjo may have been uncomfortable with the crowd of visitors packed into the room; or the photojournalists and television journalists recording the court proceedings.

Still, the court's verdict on the case certainly shocked many of the visitors in that trial. The judicial panel upheld Tomy Winata's lawsuit against TEMPO on charges of libel. The court found TEMPO guilty of causing loss to the plaintiff. "The defendant has violated Tomy Winata's subjective rights and is therefore guilty of character defamation," said Sunarjo, chairing the judicial panel.

Accompanied by justices Panusunan Harahap and Ridwan Mansyur, Sunarjo ordered TEMPO to pay Tomy Winata Rp500 million in non-material damages for harm caused to Winata. Referring to Tomy Winata as a "successful businessman in the banking and property sector", Sunarjo also ordered TEMPO to revoke its article titled Getting Burned? from publication, which Winata claimed was defamatory in nature. Finally, the court ordered TEMPO to publicly apologize to Tomy Winata in three print media: Koran TEMPO, Media Indonesia and Warga Kota newspapers, in addition to posting a half-page apology in three successive TEMPO magazine editions. The court warned TEMPO against failing to execute this order, threatening it with a Rp300,000 daily fine for failure to carry out the order.

TEMPO's attorney Todung Mulya Lubis interjected at one point during the proceedings, warning the panel that the verdict would threaten freedom of the press in Indonesia. "[The verdict] illustrates the low regard accorded to the press, freedom of the press, and its function as a form of social control," said Lubis. Lubis also accused the court of ignoring the function and importance of freedom of the press in delivering its verdict. Lubis has appealed the verdict.

Ironically, Tomy Winata's attorney, O.C. Kaligis also expressed disappointment with the verdict, claiming that the amount of compensation awarded to his client was insufficient. "The damages are inadequate," said Kaligis.

The dispute between Tomy Winata and TEMPO arose from the article Getting Burned? which was published in TEMPO's March 4-10, 2003 edition. Several days after the article was published, hundreds of Tomy Winata's supporters attacked the magazine's headquarters in Jakarta. During this attack, three TEMPO journalists (Abdul Manan, Bambang Harymurti and Ahmad Taufik) were personally assaulted by Winata's supporters. Ironically, David Tjiu, who was accused of physically assaulting chief editor Bambang Harymurti, was exonerated of assault charges. Coincidentally, also presiding over that case was judicial panel chairperson, Sunarjo backed by Justice Ridwan Mansyur. Prior to that verdict, Tomy Winata had reported TEMPO to the police on charges of defamation, naming Bambang Harymurti, Ahmad Taufik and Teuku Iskandar Ali defendants. This criminal law case is currently being tried at the Central Jakarta District Court.

In July 2003, Tomy Winata also filed a civil lawsuit against TEMPO, accusing TEMPO of defamation and biased reporting. "The reporting was provocative," said attorney O.C. Kaligis.

Tomy Winata claimed that the article caused him financial loss. In his lawsuit, Winata demanded that TEMPO pay him Rp200 billion in material and non-material damages for the loss he suffered. Winata also demanded that TEMPO revoke the article in question in addition to apologizing publicly in several print and electronic media.

In his lawsuit, Winata specifically focused on several sentences which he claimed were misleading. One such sentence read: "Tomy Winata has reportedly received a Rp53 billion project to renovate the Tanah Abang market". Winata argued that this reporting unfairly influenced public opinion by insinuating that he profited from a fire which had burnt down the Tanah Abang market. Winata also argued that the article insinuated that he had masterminded the incident.

TEMPO expressly rejected Winata's lawsuit, claiming that Tomy Winata had waived his right to respond to the article in accordance with Law No. 40/1999 on the Press. "The civil lawsuit should be postponed in view of the fact that the criminal proceedings are ongoing," Todung Mulya Lubis added.

However, the court rejected Lubis' arguments, claiming that the Press Laws were not absolute in their jurisdiction. According to Sunarjo, Article 5 verse 2 of the Press Laws only made available the "right to respond" to a piece of reporting, but did not demand that this right be used. "Whether a person wants to use this right is their prerogative," said Sunarjo. The court also ruled that the Press Council was not authorized to rule over cases dealing with the press. The court rejected all of TEMPO's defense arguments.

Surprisingly, the court ignored expert testimony provided by TEMPO. In stark contrast, the court accepted testimony given by Tomy Winata's witnesses, Rahayu Surtiati Hidayat and Tjipta Lesmana. The testimony of press observers Hinda Panjaitan, Leo Batubara and Abdullah Alamudi was ignored, although all are held in high esteem for their integrity in matters of the press.

In its considerations, the panel ruled that TEMPO's reporting had indeed unfairly reported Tomy Winata's character and had influenced readers to believe that Winata had submitted a proposal to renovate the Tanah Abang market. Strangely, this argument was neither established nor proven during trial. "That reporting is inaccurate and false," said Justice Sunarjo, merely confirming Tjipta Lesmana's testimony that TEMPO's reporting insinuatingly accused Tomy Winata of masterminding the burning down of the market. The panel also rejected TEMPO's defense argument of "covering both sides", arguing that, "the end result is what matters".

Chairman of the Union of Newspaper Publications, Sabam Leo Batubara, expressed anger at the court's verdict. According to Batubara, the court's demand that members of the press report only matters of absolute truth and accuracy is unreasonable. Batubara claims that absolute truth and accuracy does not exist. "Members of the press cannot be convicted on whether their reporting contains absolute truth, but rather on whether they have upheld journalistic integrity," said Batubara, who is also a member of the Press Council.

Dozens of journalists held demonstrations against the court verdict the following day. They claimed that the verdict compromises freedom of the press. "Ignoring the right to respond and ignoring the role of the Press Council sets a bad precedent for all members of the press," said the director of Legal Aid for the Press, Misbahuddin Gasma during a press meeting, last Friday.

Todung Mulya Lubis also accused the court of jeopardizing freedom of the press in Indonesia. "Is it legitimate to file lawsuits against the press without going through the Press Council, as stipulated in the laws?" questioned Lubis. Lubis also accused the court of ignoring Article 1376 of the Civil Code, which states that civil lawsuits against the press should not be upheld in the absence of actual intent to cause harm. Pursuant to this provision, intent to cause harm does not exist if a member of the press was reporting in the public interest.

Nevertheless, Sunarjo denies having jeopardized freedom of the press in Indonesia. "We were only adjudicating over Tomy's lawsuit," said Sunarjo, denying any claim that the verdict could have wider implications for the freedom of the press in Indonesia.

Juli Hantoro

TEMPO, MARCH 29, 2004-029/P. 42 Heading Law


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