Tuesday, May 31, 2005

Settlement Time

The government has elected to adopt a path of mediation for settlement of the Newmont case. A timely decision before the president visits the US?

ON May 13, the Department of Finance held a closed-door meeting, not to discuss the state of the economy, but rather to discuss the ramifications of adopting a path of mediation to settle the government's lawsuit against PT Newmont Minahasa Raya on environmental destruction charges. The request for mediation was made by the South Jakarta District Court for a civil law case involving alleged environmental destruction in Buyat in North Sulawesi by Newmont.

The case also carries criminal elements. "The indictment is still in the process of being completed," said Robert Ilat, chief of Prosecution of Special Crimes at the North Sulawesi High Prosecutor's Office. However, the meeting was primarily concerned with the civil lawsuit. On March 9, the government filed a civil suit against Newmont, demanding US$117.68 million in damages and an additional Rp150 billion in non-material damages for violating Law No. 23/1997.

During the meeting, the State Minister for the Environment, Rahmat Witoelar, stated that it was of crucial importance that Newmont admit its guilt and that the victims of the environmental damage receive compensation for their loss. After the meeting, Witoelar said that an agreement on the official government stance on the case had been reached. "The government has decided to settle the case outside the court system," said Coordinating Minister for the Economy, Aburizal Bakrie.

In addition to Aburizal Bakrie, who chaired the meeting, the Coordinating Minister for People's Welfare, Alwi Shihab; the Minister for Energy & Natural Resources, Purnomo Yusgiantoro; and Nur Hassan Nirajuda, the Foreign Affairs Minister, were all present at the meeting. Also attending were representatives from the National Police, the Attorney General's Office (AGO), the North Sulawesi Regional Government, and the Department of Health.

A decision was also made to appoint the AGO to represent the government in arguing the merits of the civil case during arbitration. According to Bakrie, the AGO will receive materials and directions from a special team led by Bakrie himself, comprising staff from the Ministry of Public Welfare, the Ministry of Energy, the Ministry of Political & Security Affairs, the Department of Health, the National Police, and the North Sulawesi Regional Government.

Newmont has welcomed the government's decision to settle the case outside of court. Newmont's attorney, Luhut Pangaribuan, claims that the contract between the Colorado-based company and the Indonesian government stipulated that any disputes would be settled through mediation. "Arbitration means settlement out of court. So, actually there is no choice. That was the agreement," he said.

Settling the case outside the courts has both pros and cons. According to Raja Siregar, a researcher at the Indonesian environmental organization, Walhi, settling the case through mediation saves time and energy. Siregar also noted that mediation would ensure that the government could secure compensation for the victims of the destruction. "In this sense, mediation is a win-win solution," he said.

However, Siregar also outlined some disadvantages of arbitration. Siregar voiced concerns that if the mediation efforts were not successful, people might believe that Newmont was not guilty of committing environmental damage. Siregar also noted that adopting a path of mediation prevents the government from testing the law enforcement process for environmental protection cases. "This is the first time that the government has filed an environmental lawsuit against a company," he added. Nevertheless, Minister Witoelar vowed that trial would continue if the mediation process fails.

Soedarto, the Chairman of South Jakarta District Court, predicted that the arbitration process would end by the end of May. The arbitration process is being adjudicated by Justice Wayan Rena. And Santoso, AGO Director of Civil Rights Protection, confirmed that the arbitration process had already begun and would continue until May 31.

However, some observers have expressed concerns that the government's decision to adopt a path of mediation was politically motivated. According to Raja Siregar, these concerns surfaced following US Ambassador to Indonesia, Ralph L. Boyce's, decision to visit Newmont directors held in police custody on charges of having violated Law No. 23/1997 on Environmental Management at National Police Headquarters. Boyce also met with former president Megawati on September 27, 2004 and National Police Chief, Da'i Bachtiar, just two days after that.

The five Newmont directors arrested and held in custody were William Long (an American citizen), Phil Turner (an Australian citizen), and David Sompie, Putra Wajayatri, Jerry Kojansow (Indonesian citizens). Newmont's president director, Richard Ness, was not arrested.

Siregar also claims that the government's decision to adopt a path of mediation has also been linked to President Yudhoyono's planned visit to America. Yudhoyono is scheduled to visit Washington from May 24-26 to seek international support for the government's working programs in the fields of investment, trade, education and the economy.

Nevertheless, Minister Witoelar has denied that the government's decision to settle out of court was influenced by Yudhoyono's plans to visit America. In fact, Witoelar claims that Yudhoyono gave special orders to "do what is right" in the Buyat case. The minister also said that if asked about the case, the president could candidly reply that Newmont has been charged with damaging the environment. The minister echoed the president's sentiments. "If we are in the right, then what have we to fear?"

Abdul Manan, Sukma N.L., Raju F., Agriceli

TEMPO, MAY 30, 2005-038/P. 26 Heading Law

Monday, May 30, 2005

Rahmat Witoelar: "If we are in the right, why should we be afraid?"

THE Buyat Bay pollution case, which lasted throughout 2004, is now heading towards an out-of-court settlement. Why did the government finally take that road? Tempo reporter Sukma N. Loppies and Abdul Manan met with Environment Minister Rahmat Witoelar last Friday for an interview. Excerpts:

What is the government's position on the civil lawsuit against Newmont?
We had taken civil and criminal legal action against the company. The criminal lawsuit was based on the suspicion that they had broken the law. Whether this is true or not depends on the court. Aside from suspicion of having broken the law, there were losses incurred. Essentially, the state sued them according to civil law because we felt the environment was damaged and the community suffered losses over there because of them. We are involved in the environmental part, the attorney general deals with the law. I am giving special authority to the Attorney General's Office.

What happened at the May 13 meeting?
The Buyat case is technically discussed between departments, so the meeting was held at the Office of Coordinating Minister for the Economy. At the meeting, the attorney general's lawsuit was clarified. The judge had given us the opportunity to coordinate matters. We accepted the suggestion, because we wanted to discuss three choices: mediation, negotiation or arbitration. We evaluated the losses incurred and sent it to Coordinating Minister for the Economy, Aburizal Bakrie. In simple language, matters about the law will be handled by the attorney general. The substance will be coordinated by the Economics Minister. The meeting reached that conclusion.
So exactly what was decided at the meeting? Mediation?
Why end with an out-of-court settlement?
That's what the judge said. If that works, the dispute will be ended. The judge told us to do it, so we agreed. But Newmont has not [agreed]. For the moment, the process is still being implemented within the judge's scope of work. When everyone has agreed, Newmont will have to pay. Clearly, we sued and it must be settled, whether in or out of court.
If the negotiation succeeds, will the lawsuit be withdrawn?
Of course. It will not be withdrawn, it will be settled. That's automatic. But if there is no compensation, that won't be the case.
It's important that the community gets compensated.
Yes, whether the settlement is in or out of court. We are not emphasizing who is wrong or who is right. That would be the outcome of the criminal case.
Has Newmont ever asked to meet with you to negotiate?
They did. Way before the May 13 meeting, the CEO of Newmont met me in Bali. He asked that this problem be forgotten. We told him we didn't want to. I said, "you admit you were wrong, and you pay." While he insisted his company had done no wrong, he said he would pay anyway. We refused that. It's not just about the money. What if people presumed we were being bribed? Everything must be out in the open.

Will this affect the investment climate?
We would not be affected. The US ambassador has come to see me a few times. I told him I respected the integrity of his country and the integrity of people investing here. But if they come here with the intention to pollute, or commit other ill intentions, then they shouldn't bother coming here. He did say that investors might refuse to come here because of the case, and I told him again, that they would be people with ill intentions.
Did this settlement have anything to do with President Susilo Bambang Yudhoyono's trip to the US?
The president said, do the right thing, so I did. If we are in the right, why should we be afraid? In the US, such disputes end up in court. When SBY is in the US and he is asked about Newmont, he will say that Newmont was taken to court because it was suspected of breaking the law.

TEMPO, MAY 30, 2005-038/P. 27 Heading Law

Tuesday, May 24, 2005

Taking Offense

Human rights activists have condemned the "insult against the president" regulations, claiming they have no place in a democratic country.

LAST Monday, student activist Wayan Gendo Suardana stood trial on charges of insulting the president. At one point during the hearing, Suardana stood from his seat and rushed out of the courtroom to meet with colleagues who had gathered outside the Denpasar District Court. Judicial panel chairperson, I Made Sudia seemed momentarily stunned, but then composed himself before bellowing: "Guards, secure the defendant!" whereupon the guards escorted Suardana back to the room to continue the hearing.

Evidently, Suardana, 29, was upset with the court's decision to deny his request to have President Susilo Bambang Yudhoyono summoned to give testimony during the trial. In fact, the court initially granted Suardana's request to have the president summoned. However, this decision was overruled by the High Court. Suardana was convinced that Yudhoyono's testimony would help exonerate him from the charges of insulting the president.

The actual "insulting" incident took place during a demonstration held in front of the Bali Regional House of Representatives in December 2004, protesting the hike in petroleum prices. During the demonstration, Suardana displayed a poster of President Yudhoyono resembling Dracula. Demonstrators subsequently burnt the poster. Suardana was immediately arrested and charged with insulting the president under Articles 134 and 136 of the Criminal Code.

In response to the prosecutor's indictment, Suardana asked his attorney, Agus Samijaya, to request the court to summons the president to give testimony during the trial. Samijaya argued that the president would clarify whether he was personally insulted by Suardana's actions. "We need to determine whether the president himself was insulted," Samijaya said. Surprisingly, the presiding district court judicial panel granted Suardana's request.

Dissatisfied with the ruling, Prosecutor Putu Suparta Jaya filed an appeal against the district court decision with the High Court. High Court Justice I Made Lingga promptly overruled the district court ruling. Lingga ruled that the president should not be disturbed from performing his duties at the Presidential Palace to give testimony in a trial that did not directly concern him.

However, the issue has triggered a debate as to whether the president should have been summoned. According to criminal law expert, Andi Hamzah, the president should not be summoned to testify as a "victim witness." According to Hamzah, "the victim of the alleged insult is not Susilo Bambang Yudhoyono, but the president." Hamzah claims that the prosecutor already represents the government in this instance. Separately, Udayana University Law Faculty lecturer, Gde Swardana, corroborated Hamzah's view, claiming that it would be unreasonable to summons the president to every trial involving "alleged insults against the president." "The president is very busy," he explained.

This is not the first time that a defendant has asked that the president be summoned to give testimony at a trial involving alleged "insult against the president" charges. "But, these requests are always rejected," noted Gatot, attorney to student activist Monang Johannes Tambunan, who was sentenced to six months in prison on charges of insulting the president by the Central Jakarta District Court, last Monday.

Nevertheless, Suardana has not given up hope. Suardana's attorney, Samijaya also filed an objection to the prosecutor's use of Articles 134 and 136 of the Criminal Code. Samijaya criticized the prosecutor's decision to use these provisions, claiming that they have been traditionally used against advocates for democracy. "These regulations are a legacy of the Dutch colonial government," said Samijaya.

Other legal observers have supported Samijaya's view, criticizing prosecutors for their frequent use of these regulations and provisions prohibiting the disseminating of animosity against the government.

In fact, founding father Sukarno was also charged under these provisions during his fight for independence from Dutch rule. In 1930, the Dutch colonial government tried Sukarno for spreading "animosity against the Dutch government." Sukarno was convicted of the charges and sentenced to four years in prison. Mohammad Hatta was also charged with violating this legislation while in Holland in 1927, but was exonerated of all charges.

Former director-general of laws and regulations at the Department of Justice & Human Rights, Romli Atmasasmita, also said that using these provisions is unnecessary. "In democratic nations, such legislation does not exist," he said. Atmasasmita suggests that defendants accused of these charges could be just as easily charged under the defamation provisions within the Criminal Code. "I do not agree with the inclusion of these provisions in the revised Criminal Code," he said.

However, other legal observers support the provisions. Andi Hamzah expressed support for the provisions, claiming that every country has legislation that demands respect for the head of state. According to Hamzah, there should be no exception in a democratic country like Indonesia.

Abdul Manan (Jakarta), Rofiqi Hasan (Denpasar)

TEMPO, MAY 23, 2005-037/P. 42 Heading Law

Monday, May 09, 2005

Removing a Stumbling Block

The Constitutional Court has revoked an article preventing any judicial review of laws issued before 1999. Some oppose it, many others welcome it.

THE chance to question laws in the Constitutional Court is now indeed wide open. It results from the annulment of Article 50 of Law No. 24/2003 on the Constitutional Court, which regulates the institution's authority to review laws. In its session on April 12, the Constitutional Court declared the article in opposition to the 1945 Constitution. With this decision, all laws are automatically liable to judicial reviews, including that concerning capital punishment.

Those that will apparently move soon are several non-governmental organizations for human rights like the Commission for Missing Persons and Victims of Violence (Kontras), Imparsial, the Indonesian Legal Aid Foundation, the Jakarta Legal Aid Institute, and the Human Rights Study and Advocacy Institute. They are preparing a judicial review of a number of laws stipulating the death sentence. "The entire legislation containing capital punishment will be on our review list," said Kontras Working Body Coordinator Usman Hamid on Wednesday.

Kontras has listed at least 11 laws and regulations carrying punishment by death. Among those are Emergency Law No. 12/1951 on firearms, Law No. 5/1997 on psychotropics, Law No. 22/1997 on narcotics and Law No. 15/2003 on the eradication of crime of terrorism.

The plan to question the laws was in fact already decided by Kontras and the rights campaigning NGOs last year. One of the channels used was the request for a judicial review. But the expectation hit a stumbling block.

Article 50 was just the block. This article stipulates that the laws appropriate for submission as documents to be reviewed are those promulgated after the amendment of the 1945 Constitution.

With the revocation of this article, the laws subject to reviews are not only products of 1999 and subsequent years. "They cover laws produced under the Provisional Constitution and the Federal Constitution of the Republic of Indonesia," said Constitutional Court Chairman Jimly Asshiddiqie.

The annulment itself originated in the judicial review applied for by Chairmen of the Chamber of Commerce and Industry for Small and Medium-scale Enterprises (Kadin UKM), Elias L. Tobing and R.D.H. Naba Gunawan. They questioned Article 4 of Law No. 1/1987 on the Chamber of Commerce and Industry (Kadin). Article 4 was considered in violation of their constitutional right for preventing their establishment of Kadin UKM. It is because Law No. 1/1987 only recognizes one Indonesian chamber of commerce, which is Kadin.

This action, however, was stalled by Article 50. Law No. 1/1987 was issued before 1999 and the Constitutional Court was not authorized to judge. Elias then requested a judicial review of Article 50. This suit against Article 50 was accepted, but the other against Article 4 of Law No. 1/1987 was rejected. Yet the cancellation of Article 50 was not unanimously decided. Three justices, H.M. Laica Marzuki, H. Achmad Roestandi and H.A.S. Natabaya, conveyed their dissenting opinion.

According to Jimly, his institution actually went beyond its authority in 2003. At that time, he said, Machri Hendra, the judge of Padang's district court, filed his judicial review application against Law No. 14/1985 on the Supreme Court. For various reasons, the Constitutional Court put aside Article 50 and dealt with the case. Machri lost in the legal battle. "The public was not much aware of this breakthrough, probably because it's a new institution and its decisions drew less attention," he added.

The removal of Article 50 is likely to make the court under Jimly face an influx of suits for judicial reviews. This is the apprehension of Zain Badjeber, former chairman of the House of Representatives special committee for the constitutional court bill. According to Zain, Article 50 was the government's proposal later accepted by legislators. "The article was created just for the purpose of avoiding piles of cases in the Constitutional Court," he said. "I'm afraid this court will later be overwhelmed by requests as is now experienced by the Supreme Court," added Zain.

Jimly acknowledged that the annulment of Article 50 had reaped criticisms everywhere. "One of them described us as strengthening ourselves," he revealed. But in his view, his court had no choice. "Otherwise, some circles would be referring to the former constitution, others the new constitution, leading to a double standard," he indicated. As he observed, the amended constitution is virtually a new one. "Because out of its 199 paragraphs, 174 are new ones," he pointed out.

To the lecturer of constitutional law at Andalas University, Padang, Saldi Isra, the ridding of Article 50 is a correct decision. "In this way, the process of constitutional reform can be carried on," said Saldi. Only by this means, according to Saldi, can all legal products evaluated as rights infringements and justice inconsistencies be subjected to judicial reviews.

Besides the laws connected with capital punishment, there are in fact several others so far seen as being opposed to the spirit of the constitution. Nursjahbani Katjasungkana, a member of the House Commission III, mentioned Law No. 1/1974 on marriage. "Some articles of the law are against human rights," said Nursjahbani. Actually, noted Nursjahbani, the 1945 Constitution respects human rights. She cited Article 31 in this law, which defines the role of a husband as head of family and that of a wife as domestic woman, or Article 34, which stipulates that a husband provides everything needed in a household while a wife takes care of household affairs. "It's not in line with the spirit of human rights," she maintained.

Apart from the marriage law, Law No. 62/1958 on Indonesian citizenship, in the opinion of Nursjahbani, also needs a prompt review. This law requires that children of an Indonesian woman marrying a foreign citizen follow the citizenship of their father. "The law allows no equal right to the mother in terms of her children's citizenship and is opposed to the constitution," she asserted.

Among woman activists, said Nursjahbani, the two laws had been a subject of discussion for a long time. She disclosed that one of the aims of setting up the APIK Legal Aid Institute was to handle cases arising from such laws. "With the Constitution Court's decision, our chance of having both laws reviewed is now open," she added.

But in the eyes of Coordinator of the National Committee for Legal Reform (KRHN), Firmansyah Arifin, the absence of Article 50 will not readily cause the Constitutional Court to be flooded with cases. KRHN was among the agencies drawing up the "blueprint" of the Constitutional Court. "Though no trial charges are imposed, the constitutional right testing mechanism will become a means of selection of cases to be taken to this court," he said. Therefore, Firmansyah guaranteed that no "inflation of cases" would affect the court. "I believe the efficiency and effectiveness of this institution," he assured.

Abdul Manan



Application- Through the Case Administration Division- Written in Indonesian- Signed by the applicant- Submitted 12-fold- Specifying the type of case - Systematics. 1. Identities and legal standing. 2. Posita (reasons for application). 3. Petitum (Request that the law being questioned be denied permanent legal force)- Supporting evidence

Registration- Through the Case Administration Division- Document examination- Registration
Court trial schedule- First session is determined 14 working days after registration- Notification is sent to the applicant - Trial is announced to society

Preliminary examination- Before dealing with the case, the justice scrutinizes documents to check their completeness and clarity.- Counsel is given to complete and improve application papers- Documents and material must be complete in 14 days

Court trial- Open to the public- Examining the request and evidence

Decision- Decision making is based on consultation or consensus- Majority votes are adopted if consensus fails- Each justice submits written opinion or consideration

TEMPO, MAY 09, 2005-035/P. 40 Heading Law

Monday, May 02, 2005

An Icon from Calang

ONE morning last February, as usual, Dina Astita arrived in one of the emergency schools located at Calang City, Aceh Jaya, Nanggroe Aceh Darussalam. Before long, two Time magazine reporters arrived to conduct an interview with her. The conversation carried on for more than half an hour, touching on subjects from her students to her family.

Dina has long since forgotten the interview that February 23, 2005. She was reminded of it only when a short message service arrived from a colleague in Jakarta, two weeks ago. The content of the message was surprising. The 34-year-old was featured in the April 18, 2005 edition of Time. She was considered one of the 100 most influential figures in the world today.

In the magazine's report, Dina is listed in the same pages as the Dalai Lama (Tibetan spiritual leader), Bill Gates (Microsoft boss), Viktor Yuschenko (Ukrainian leader), and Michael Schumacher (Formula 1 race car driver). They are viewed as icons and heroes within their respective fields.

None of this had ever crossed Dina's imagination. As an honorarium teacher, she is considered one of the most formidable figures in assisting the revival of educational activities in post-tsunami Aceh. Yet, this woman--born in Lamno, Aceh Jaya, on June 6, 1971--claimed to have no intention of gaining any kind of popularity whatsoever. Her biggest inspiration? Her own children. "By helping other children to school, my own children may be surviving some place else," Dina said.

As a result of the tsunami that swept Aceh on December 26, 2004, Dina lost all of her children: Almanda Ahmady, 7, Aldius Ahmady, 6, Altausal Ahmady, 4, and one foster daughter, Maisarah, 23. She survived along with her husband, Usman Ahmady, by departing to Banda Aceh the morning before the earthquake to attend her brother's wedding at Baiturrahman Mosque. The wedding was inevitably canceled when the earthquake and tsunami arrived as uninvited guests.

She could not go back home until 20 days later, taking a boat due to the heavy damage of the roads. Her house at the Calang City Housing and Development Services Complex was leveled to the ground. "Did anybody see my children?" was a question she would ask anyone she met. She has not seen her children since.

Dina and her husband eventually filled their days by offering their assistance to one of the German-run field hospitals, as interpreters. Dina also assisted with the immunization of school children. It was then that she noticed the children's education was inexorably neglected, due to the lack of space, teaching staff, and equipment.

The children had indeed been organized by marines to attend schooling in three different tents: for elementary, junior high, and senior high school respectively. Still, there was no education other than singing and marching. Her instinct as an educator was aroused. Dina resigned from her interpreting duties and opted to return to teaching.

In one of the meetings between the task force, military, and NGOs, Dina requested for more tents to be provided in lieu of classrooms. As more tents rose the next day, she took to teaching English language and biology for 200 junior high-school students. Alternately, she would take the position teaching a senior high-school class with some 300 students in attendance.

Her other activities are to find more help to return students back to school, and teachers back to teach. Her efforts led to her recognition. Several aids for education activities soon found themselves in Dina's trustworthy hands. "We know that Bu Dina has been very active in the field and helped with education matters in Calang," said Musriyadi Aswad, an employee of Nurani Mandiri, an NGO.

Dina had always wanted to be a teacher. She graduated from the Ar-Raniry Islamic State Institute, Banda Aceh, in 1996. After marrying Usman, then an employee of the Banda Aceh Public Services Department, she started teaching. Dina was made an honorarium teacher at the Banda Aceh Technical High School. Four years later she moved to Meulaboh, following her husband who was transferred to work there. In this West Aceh district capital, Dina continued teaching, as an honorarium teacher at the Meulaboh Technical High School.

In 2002, she moved to Calang as her husband was appointed as the Aceh Jaya Housing and Development Services Department head. In this city, Dina took the position of honorarium teacher at the Krueng Sabee I Junior High School. "I have attempted the state employee examinations many times, still I have not passed," she claimed.

The featuring of Dina Astita in a magazine such as Time may be worth more than the simple state employee status she wishes for. Yet, she is still humble: "This is more of a responsibility for me."

Abdul Manan, Adi Warsidi (Calang)

TEMPO, MAY 02, 2005-034/P. 26 Heading National

Protecting the Whistleblowers

The police are now prioritizing investigation of corruption cases over defamation lawsuits.

THE circular letter was sent by the National Police Headquarters at the beginning of last March to all regional police offices. The letter instructed the police rank and file to give priority to the handling of cases of corrupt practices if, at the same time, there were defamation lawsuits requiring their attention. Dated March 7, 2005, the letter was signed by Director III/Corrupt Practices and White Collar Crimes of the National Police Headquarters' Crime Investigation Agency, Brig. Gen. Indarto. "If the suspicion of corruption is proven, the job on the defamation lawsuit gets aborted," said Indarto.

The emergence of the circular cannot be separated from the intervention of the Corruption Eradication Commission (KPK). Back on January 27, the Coalition of NGOs for Clean and Quality General Elections complained to the KPK, because its report to the KPK about suspected corruption amounting to about Rp600 billion in the General Elections Commission (KPU) had resulted in a defamation lawsuit filed with the Greater Jakarta Police. The coalition asked the KPK to protect the witness.

The KPK wasted no time in responding. Four days later, the super-body institution dispatched a letter to National Police HQ. Signed by KPK Deputy Chairman, Erry Riyana Hardjapamekas, the letter asked the police to consider temporarily deferring investigation on the libel and defamation case. The reason given was that the KPK was investigating a suspected corruption case in the KPU. It was in response to this request that Indarto issued the circular.

According to Indarto, however, because investigation on suspected corruption cases usually takes time, whereas a defamation report can expire after a given timeframe, the investigator is permitted to continue processing the defamation case. "But limited to asking information, not to be passed on to the public prosecutor," he added. Next to acting on the KPK letter, Indarto said, the circular he signed was in response to the numerous cases of suspected corruption that were followed by reports on defamation. "It's as if it has become fashionable," he said.

One case of reporting corruption that entailed a suit against defamation was that which befell Pastor Frans Amanue. This Chairman of the Larantuka Diocese's Commission of Justice and Peace was reported to police by East Flores Regent Felix Fernandez for defamation through the citing of alleged corrupt practices in the distribution of aid funds for flood victims. The pastor's trial so enraged his followers that they torched the Larantuka courthouse and the district prosecutor's office.

A similar fate came Koridor tabloid's way in Lampung. Because it carried an article entitled, "Alzier Dianis Thabranie and Indra Karyadi Strongly Suspected of Having Embezzled Rp1.25 billion in Golkar Party Witnesses' Fund" in its July 12-18, 2004 edition, the tabloid was reported to the police. Former Golkar figure and former Lampung Governor, Alzier accused Koridor of besmirching his good name. The case is now being processed in court, with the public prosecutor having demanded a two-year jail term for the tabloid's management.

Next came the case of Dradjad Wibowo, an economics observer and activist of the National Mandate Party (PAN). Because his opinion about the possibility of Adrian Waworuntu's involvement in the BNI bank swindle case was quoted by Koran Tempo, he was reported to police for slander and defamation. Oddly enough, police gave the impression of being quite energetic in processing this report, although the person who filed it was then in custody at National Police Headquarters as a suspect in the BNI scam. Fortunately, following his swearing-in as House of Representatives (DPR) member, the investigation slackened. This was the more noticeable when in early April the court sentenced Waworuntu to life imprisonment on being proven guilty of swindling BNI.

The police habit of seemingly defending corrupt persons and white-collar criminals obviously worries many quarters. "Actually, police should actively investigate the claim of corruption, instead of the person who makes that claim," said Press Council member Leo Batubara. He voiced the hope that the police circular would no longer make the public afraid of reporting cases of corruption.

Confirming that he had received the circular on prioritizing alleged corruption cases, the chief of the East Nusa Tenggara Police, Brig. Gen. Edward Aritonang, called on the public not to be afraid to report cases of corruption. "Should there be a denial from the corruption culprits in the form of a lawsuit, that would be put off until there is a legal ruling of permanent effect on the relevant graft case," he assured.

To NGO Coalition Defense Team member Hermawanto, the National Police's circular is a big step forward, though still not the maximum that can be attained. In his opinion, witnesses who report cases of corruption ought to be protected and granted immunity. "The processing of suits against defamation should not merely be deferred, but stopped," he said.

Hermawanto also bemoaned the absence of sanctions for police officers sidestepping the circular. "If there is any, it is but an ethical one," he observed. Indarto admits the deficiency, but claims that this does not mean a complete absence of penalty. "It will be put on record by the relevant superiors," he insists.

As for the protection of people reporting corruption, Criminal Code (KUHP) expert Romli Atmasasmita contends that it is actually already provided for in the KUHP. "The KUHP protects citizens who report punishable acts, including corruption," said the former Director-General of Regulation and Legislation of the Department of Justice. If a report is proven true, Romli said, the suit against defamation automatically becomes invalid. Even so, Romli remains appreciative of the circular. "Only, it should have been issued by the National Police Chief, just to make it more prestigious," Romli said.

Lawyer Atmajaya Salim, for his part, hopes that a similar circular will be issued by the Supreme Court, directed to judges in handling lawsuits against defamation. He noted in this connection that, next to being reported to police for defamation, those who report cases of corruption and white-collar crimes are, more often than not, subjected to civil suits. One case in point is Trust magazine, which was sued by John Hamenda, one of the suspects in the BNI swindle case, for alleged defamation by publishing an article entitled "The BNI Swindle Plot" in its October 1-7, 2003 edition. In May 2004, a court ordered Trust to pay a fine of Rp1 billion. The ludicrous thing about this verdict is that just a few months later--on November 4 to be exact--John Hamenda drew a 20-year jail sentence from the South Jakarta District Court.

Atmajaya Salim, Trust's legal counsel, holds that, actually, the trial of a case like his client's, should be deferred until the corruption case or the white-collar crime case in question has been completely processed. Not only would this be in line with the spirit of eradicating corruption, he said, but "it also would serve the principle of simple, cheap, and quick trial."

Abdul Manan, Jems de Fortuna (Kupang), Fadilasari (Lampung).

TEMPO, MAY 02, 2005-034/P. 20 Heading Cover Story