27 June 2009

Defamation in Indonesia -- The Prita Mulyasari Case

This is an interesting case for a number of reasons, but it has become infinitely more interesting now that the Tangerang District Court has handed down its decision on the merits of the case. In essence, the Court has thrown the case out based on the legal reasoning that the law under which Prita was charged has not come into force. This means that the indictment was invalid and the allegations charged on ineffective legal provisions.

There has been much discussion about the legitimacy of the judiciary with respect to the quality of the judges being permitted to sit on the bench. These discussion generally call for immediate reform and a cleaning of the slate. The idea being one where all of the "dead wood" would be swept away and only quality timber would remain. This decision is sure to re-ignite the judicial reform debate, if the debate needs any re-igniting.

A really brief background of the Prita (photo here) case is as follows. Prita went to the Omni International Hospital for treatment. Prita was unhappy with the treatment and wrote to a friend expressing her disappointment and horror at how she was treated. This written account found its way to a mailing list, and the rest is history so to speak, as the account spread like wildfire. Eventually, Omni found out about the claims and sued Prita for defamation.

Defamation in Indonesia is both a civil and criminal offense. The civil case was heard before the criminal case (which has just been thrown out). In the civil case, Omni won a decision against Prita for the defamation. The Court in the civil case ordered Prita to pay damages to Omni to the tune of IDR 312 million. The Office of the Public Prosecutor in Tangerang decided that it was going to pursue the criminal defamation complaint as well and then had Prita placed in the Tangerang prison while awaiting trial.

Indonesia has been in a rather lengthy debate as to whether a democracy such as Indonesia should even have criminal defamation laws on the Statute Books. However, this really is not the issue, as there are democracies elsewhere that have criminal defamation laws on their statute books but also restrictive definitions as to what can be subject to a criminal defamation prosecution.

So, within this framework, the jailing of a mother of two, where one of those children is a breast-feeding infant was sure to cause public outrage. Even better still was that this is an election year, and with a presidential election in early July, this was the perfect time for some political grandstanding. Prita was eventually released from prison after some intervention from at least two of the three presidential candidates; Jusuf Kalla and Megawati Soekarnoputri are never ones to miss an opportunity.

There were even some harsh words from the Attorney General suggesting that the public prosecutors had over-stepped the mark. There was at the time the sense that perhaps the hospital had lobbied hard for the prosecutors to make a move on the criminal defamation and proceed against Prita.

Probably more interesting still was the public response that pre-empted, and perhaps even prompted, the political response and ultimate release of Prita from prison. Cyber space swung into full force and within next to no time there were groups dedicated to Prita's cause and a campaign for her release. The ease and the size of the campaign and are testament to Indonesia's online community and their ability to get organized fast.

Now comes the truly interesting part. I am all for judges who are a little bit activist and judges who are creative and novel in how they approach the law. Yet, there are those times where you simply just have to shake your head and say, "what were they thinking?" This is one of those cases.

For the record, I do not think Prita should have been put in jail pending the criminal defamation trial. The reason I had avoided writing on this subject is that from a strict legal interpretation sense the criminal provisions with respect to defamation are not absolute and there are at least three identifiable get out of defamation free cards; the statements were in the public interest, the statements were uttered in self-defense, and the statements are not defamation but the truth.

It is worth noting that the Constitutional Court has heard arguments on defamation and has held that the criminal defamation provisions are not a breach of the constitutionally guaranteed rights if Indonesian citizens. The Court has also held that any more recent legislation on defamation is to be read in conjunction with any other law or regulation that purports to govern the substantive matter of the allegation. Specifically, this means that the Law on Information and Electronic Transactions (Law No. 11 of 2008), and in particular Article 27, must be read in conjunction with the Indonesian Criminal Code (Kitab Undang-undang Hukum Pidana / KUHP).

Defamation in Indonesia generally requires the insulting of one's honour or reputation. It would seem that Prita's statements to others would in a broad sense fit into this definition. Prita's defense against the allegation would be one or more of the exceptions noted earlier. Most likely here would be the public interest and that the statements are true.

The Tangerang District Court has however decided that Law No. 11 of 2008, which was enacted on 21 April 2008, does not come into force until 21 April 2010. Therefore, by the court's reasoning, the law is not officially in force and people cannot be charged under any provisions that it contains.

This is simply wrong. But, let's examine the rationale. The court relies on Article 54(2), which states the following:

All Government Regulations must be confirmed no later than two years after the enactment of this Law.

The court has therefore held that while there are pending subsidiary legislation to be confirmed the primary law is not in force.

However, this must be contrasted against Article 54(1) of the same Law, which states the following:

This Law comes into force on the date of its enactment.

Clearly, the primary law is in force according to the provisions of the law itself.

The judges have erred in their judgment on the merits of the legal basis of the case. The Office of the Public Prosecutor must appeal this case. The grounds for appeal are that the court has made a mistake of interpretation. Furthermore, the Article on which the Prita case is based, Article 27 of Law No. 11 of 2008, does not require any subsidiary legislation to be confirmed in order to be effective.

The impact of the decision is far-reaching in that all laws that have seen people charged, convicted, and detained based on a primary law where there was pending subsidiary legislation now have cause to go back and revisit the legal foundations of those cases. Lawyers in all pending cases need to look at whether there is a similar provision in the primary laws under which they have clients charged, as if there is pending subsidiary legislation then there are arguments to be made that the primary law is not in force.

There are also some serious questions to be asked where public prosecutors have brought cases to trial based on electronic evidence as defined in Law No. 11 of 2008. The serious questions here include, "if the law is not in force, then can the electronic evidence derived under its definitions be valid?"

Going forward the impact on legislators and drafters is that if they want a law to come into immediate force then the primary law must contain all the necessary provisions or primary laws must be submitted as a package deal with all the subsidiary legislation already prepared.

The decision needs to be overturned on appeal, if for no other reason, just to ensure legal certainty of legislation. The legal rationale and reasoning of the Tangerang District Court is wrong. It is unclear whether they were swayed by public opinion or feelings of "it is the right thing to do", but the decision is misguided. An Indonesian account of the decision can be found at Legal Minded by Ari Juliano Gema.

Once again, for the record, I am not for Prita being jailed. However, I am for the rule of law and proper enforcement of the law, and for all people to be treated equally under the law. The question of whether Prita has defamed Omni is a different question to the one being discussed here with respect to legal interpretation and the making of laws from the safety of the bench.

This is clearly not in the best interests of Prita (particularly if the case gets overturned on appeal), not in the best interests of Indonesia, and not in the best interests of the law.

The appeal is something I will certainly be watching.


pj said...

I was just wondering in a case such as this, where does the burden of proof lie?. Does OMNI need to prove that Prita is lying or does Prita need to prove that her statements are true.

This appears to be a very risky case for OMNI - if they win they will look like a-holes (pardon the expression) and if they lose..well they lose. Either way from a PR standpoint they have already lost.

Rob Baiton said...


My apologies for not responding sooner.

I think the burden lies with the person making the claim. Or, in this case with Prita Mulyasari to prove the veracity of her statements.

If we were to change the substance of this case to, say, rape, then where does the burden lie?

The only case where Indonesia has been seriously considering changing the burden of proof has been in corruption cases and specifically cases involving wealth accumulation.

For example, someone saying, "Hey, you're a general on a limited salary. Where does all that money come from that you have?" In this scenario it is being envisaged that the general would have to justify where the money or wealth originated and then have that verified.

My guess is this is not going to happen anytime soon. Even if it were to come into play, the standard response has been, inheritance.

It is pretty hard to then get a statement from a dead person. Although, that said, perhaps a forensic accountant could unravel the financial web.

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