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Not available online; for the reasons expressed in the article

Although this ran in the May 8-10,2009 weekend print edition of The Jakarta Globe, it is unavailable online. One has to assume that the reason it is not accessible in electronic format is explained by the contents of the piece.

Reputation at the expense of truth
Patrick Guntensperger

Once again Indonesia’s Constitutional Court has handed down a decision that undermines one of the most fundamental principles of democracy: freedom of expression. By upholding the defamation section in the country’s Electronic Information and Transaction Law (ITE), the court has determined that saying something unpleasant about someone else is not just a breach of manners but a criminal offence.

“The government is allowed to limit or regulate the press so that its freedom does not violate human rights,” the panel of judges said. While it is refreshing that the highest court in Indonesia acknowledges human rights, there is a bewildering sense of confused priorities swirling about this latest assault on the country’s fragile cling to democratic governance. That hurting someone’s feelings is seen as a violation of human rights will come as a surprise to those in the country who have been the victims of genuine human rights violations.

In an earlier, similar decision, the Constitutional Court declared that an individual’s good name, dignity, and reputation were protected by law, the Constitution, and international statute. Apparently good names, dignity, and reputations in Indonesia are so tenuous that the courts are willing to sacrifice a fundamental democratic right to protect them.

Most people who understand the concept of those things the court wishes to defend so zealously would have thought that a reputation was earned, and that a good name was the result having done something to deserve it. Many of us would find it undignified to have a person charged with a criminal offence for calling us names. In this country it seems, you don’t earn a good name or reputation, it is a human right. That by definition means a right that you don’t have to earn, you are entitled to a good reputation and name simply by being born with human DNA and, even if you are an utterly contemptible and vile example of the species, you are entitled to have it defended.

Most democracies allow for the defamation of another, if the commentary passes one test: the test of truth. In most democracies (one could even argue, in all democracies) the truth is an absolute defence against a claim of libel, slander, or defamation. In Indonesia there is no provision for such a defence. One can be charged with defamation under several sections of the Criminal Code if one defames another…whether the accusations levelled are true is irrelevant.

In a democracy, criminal court is no place to deal with claims arising from statements made. If a person feels that he has been defamed, that person has every right to seek redress in civil court. And surely it is up to that person to decide whether he feels sufficiently damaged by the words of another to seek legal remedies. There are many here among us who feel that others have every right to say whatever they think, about whatever they want…even if it is about us and even if it is insulting or degrading. If they were to make false factual statements about us, we might seek redress in court, but otherwise the statements would stand.

Nevertheless in Indonesia, the government takes it upon itself to prosecute these matters –whether we want them settled in court or not – and truth isn’t at issue. So seriously does the Court take the possibility of someone experiencing hurt feelings that the ITE allows for a penalty of six years in prison for electronically transmitting or distributing data that might be seen as defamatory. Please note that six years is about one and a half years more time than Soeharto’s favourite son did as the result of his conviction for having had a Supreme Court justice murdered.

Does the Constitutional Court really care that much about your feelings or mine? Hardly. Does the court genuinely see defamation of the average citizen as being so serious that it needs to be treated with more severity than assassination for personal benefit? Of course not. There is very little question that this latest decision reflects a deliberate, concerted effort on the part of the judiciary – itself perceived to be among the most corrupt institutions in the country – to control the press of Indonesia.

It isn’t your dignity or mine, or your good name or my reputation that is being protected here. I personally find my dignity insulted by the presumption that someone ought to be jailed for saying what he thinks about me. No, it is your democratic right to hear or express opinions, your very liberty that is being curtailed by this decision.

And make no mistake about it. Those restrictions on your freedom are not incidental side-effects of a well-meant law. That is the straightforward theft of your right to hear and to express opinions. And that is precisely what the Constitutional Court intended when it handed down that decision.


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