Prita Mulyasari and "That" Defamation Judgment...

There is one thing you can say about Indonesia, justice is a slow process through the courts. On the other hand, unchecked vigilante justice ensures the swift conclusion to almost any dispute! However, that old adage, which I am sure is too cliche now, "justice prevails", has proven true yet again.

Unfortunately, Prita Mulyasari had to wait a long time for justice to be recognised. Good for her, but one must not forget the very many Indonesians whose cases do not attract the same amount of public attention; they continue to languish in the system and without any light to be seen at the end of their nightmarish legal tunnels.

For Prita, her case should never have gone to the courts in the first place. It should not have gone to the courts for the simple reason that there was no case to answer, either criminal or civil. The case does highlight how over-zealous prosecutors can get it wrong, particularly when the ominous specter of case brokers and court mafia appear. That, and perhaps, a suggestion that the "victim" figured any up front case facilitation fees they might have to pay to get this thing off and running would be recouped several times over in any judgment that was awarded to them

The civil suit saw damages awarded to Omni International Hospital to the tune of IDR 204 million. The international here does not seem to relate to the level of service they provide, but more to the scale ..., nah, pet's not go there, I would not want to get sued for defamation or anything!

So, the Supreme Court in its infinite wisdom decided to toss the civil judgment against Prita. Tossing the case means the fine is expunged along with any need to make a public apology in a local rag in Jakarta. Nevertheless, the Supreme Court's decision to toss the civil suit ends only the civil action. The reality is that there is still a pending criminal appeal on which the Supreme Court is to decide (at least as I understand it). Prita's lawyers are bandying around the idea that it is unlikely the Supreme Court will toss the civil case and affirm the criminal case.

On face value, I would agree. But, it is the Supreme Court of Indonesia, the last bastion in many cases of hard-to-explain decisions. Let's face it, the last 48 hours has seen them reignite the KPK war by issuing a ruling that says the case against Bibit and Chandra must continue. It is fair to say the last 48 hours has been a real mixed bag at the Supreme Court.

Once the Supreme Court hands down the decision on the criminal appeal I might be able to close this sorry saga in a blogging sense.

Liberty...

Every law is contrary to liberty.

-- Jeremy Bentham (1748 - 1832)
Principles of the Civil Code (1843)

This undoubtedly applies to every nation and every individual in the world. However, I post it here as I have been thinking about the pending criminal trial of Prita Mulyasari and the recent Twitter spat of Luna Maya and the use of the Information and Electronic Transactions Law (ITE Law) in Indonesia.

I am particularly interested in the different ways that journalists view this law as a restriction on free speech. The Alliance of Independent Journalists (AJI) in Indonesia has campaigned against the law whereas the Indonesian Association of Journalists (PWI) has decided to use the provisions of the law to file a criminal defamation complaint.

These are indeed interesting times in which we live.

Roy Suryo...

Perhaps it is only fair to give the man his full title, Kanjeng Raden Mas Temenggung Roy Suryo Notodiprojo or KRMT Roy Suryo. After all, if you have a royal sounding title you have probably earned it. Roy Suryo, as he is known to his mates, is a self-proclaimed and self-taught expert on telematics. If you do not believe him, then you should just ask him.

The man is never short of a comment, and funnily enough is pretty regularly called in to pass expert commentary. Some of his better performances have been to equate bloggers and hackers as being one of the same. As a witness for the prosecution in the ongoing Prita Mulyasari dispute he offered up in his expert testimony, allegedly, that Prita intended to distribute the email because she sent it to all her friends, and did not CC or BCC the email. Therefore, this was sufficient to prove that the intent to defame had been made out.

He is close to the President, and has in fact speared the president and the president's party for large sums of cash to set up a website.

But, even more interesting is that this fellow is the master manipulator and promoter of an image, his own. So, the idea that he was seriously being considered for the position of Minister of Communication and Information should be taken with a grain of salt. It would have been a bad choice because he would have come to the position with a good number of Indonesian citizens questioning his expertise, his skills, and his ability to perform the role.

However, for his part, Roy Suryo contacted the press to let them know that he was OK with the president's choice not to appoint him to the ministerial role. Yet, at the same time as saying that he understood the president's choice, he was going on the offensive and after the person that is expected to get the nod for the ministerial slot, Tifatul Sembiring.

Sembiring has been outed as a polygamist. Although, polygamy is discouraged, it is not illegal. Provided that it is done in a manner that conforms to the prevailing laws and regulations then it is legal. Nevertheless, Roy took the opportunity to openly question whether Sembiring's polygamy would impact on his ability to do his job as the Minister of Communication and Information. I would have figured that communication and information would have had to be something that Sembiring was good at with two wives.

Seriously though, here is a fella that cannot distinguish between bloggers and hackers wondering out loud whether polygamy is going to be a hindrance to Sembiring in doing his job. Seems a little on the rich side for me.

It is worth noting that in all the high profile cases of late that Roy Suryo has appeared for the prosecution, there has been a vigorous defense put on highlighting the fact that Roy Suryo's standards as a telematic expert or in the field of digital forensic science are lacking. This is particular so in the case of Ananda Mikola and Marcella Zalianty.

I am not an expert on telematics or technology in a general sense. However, I would be concerned if I was an Indonesian and the idea of making this bloke the minister was in fact real. He really has not shown over the years to be up to the job.

That is not to say that Sembiring has shown himself to be up to the job either. But, his practice of polygamy is not a key indicator in his job performance or ability to do the job, is it?

Hospitals, Living Wills, and the Law...

This is a slightly edited version from what was posted here at hukumonline.com's English website.

The Bill on Hospitals was always destined to be. Simply, the regulatory framework for such an important and critical component of Indonesian life needed to be regulated in the form of a law. The deficiencies of the current regulatory regime in the modern era highlighted that there were insufficient provisions to govern matters such as malpractice, discrimination in the provisions of medical services, poor safety procedures, and even poorer procedures for patient complaints to be heard.

Perhaps if the hospital bill had been passed earlier in the year Prita Mulyasari would have had an avenue to complain about the service she received as a patient, rather than resorting to telling her friends about it, and then being sued for defamation.

It was clear that the government was keen to see the hospital bill passed before the end of the current parliamentary session.

The bill is pro-patient in many respects. The Health Minister, Siti Fadilah Supari, has gone to great lengths to highlight this fact. However, it is also important to note that the bill focuses on four key medical practices, namely: promotion, prevention, cure (treatment), and rehabilitation. The bill is comprehensive in that it also sets out specifications for hospitals with respect to buildings and facilities that must be provided to satisfy minimum standards. For example, hospitals must have an emergency room, operation theatre, radiology room, and a morgue, among others.

Hospitals can employ foreign staff. However, this is premised on need. Generally, it is expected that Indonesian hospitals will utilize Indonesian expertise where the expertise exists. Foreign medical staff will need to prove that they are qualified and licensed in their country of origin. It is also expected that any foreign medical staff engaged will transfer their skills and knowledge to local doctors and staff.

The bill also sets out the types and classifications of hospitals. Public hospitals are to be classifies across four levels, A to D. Article 29 of the bill deals explicitly with the obligations incumbent upon hospitals. The idea that the bill is pro-patient finds support in this article. Hospitals are required to provide medical treatment to the level of their capabilities without discrimination.

Furthermore, all hospitals must provide services to those who are unable to pay or who are poor and cannot pay set rates for services. The services must be provided to the poor and unable to pay in emergency situations without a requirement to pay any upfront fees. It would seem that the days of emergency treatment only being rendered after a down payment is made have passed.

The bill also sets out the obligations and rights of patients. As was noted earlier this Charter of Rights for both the hospitals and the patients may have allowed Prita Mulyasari and Omni International Hospital to avoid the defamation litigation that they continue to find themselves in. Patients have a right to a second opinion, either from another hospital doctor where they are or to get another doctor from outside the hospital to provide that opinion.

Patients also have explicit rights to their complete medical records. Patients also have the right to sue hospitals either as a civil or as a criminal matter if they believe the services provided to them breach any of the prevailing laws ans regulations in this sector.

Hospital fees will be set out in a national fee document. It is expected that the fee pattern will provide guidelines for fees based on actual cost of the services provided. And, hospitals are required to set their fees at levels commensurate with what is stipulated in the fee pattern as determined by the Minister.

The bill also sets out a new independent body called the National Hospital Supervisory Agency to maintain and supervise hospitals. The Agency is set up by the Health Minister in order to guarantee any matters relating to hospitals. It has the function to not only maintain and supervise the rights and obligations of patients and hospitals, but also receive complaints, and to settle disputes.

However, it must be noted that the bill includes a provision in Article 44 for the hospital to breach doctor / patient privilege and confidentiality where the patient sues the hospital and then goes public with their claim. Any patient that goes public is to be deemed to have released the hospital and relevant doctors from any confidentiality obligations regarding a patient’s medical records.

Furthermore, Article 45(1) absolves a hospital and doctors from responsibility for a patient’s death in care if the patient or the patient’s family refuses treatment or medical care. However, the provision requires that the hospital explains the consequences of refusing any such treatment or care. This is the concept of a living will. A living will allows people to set out whether or not they want to be treated or resuscitated by medical staff and doctors.

There is currently an interesting case in the United Kingdom. Doctors refused to treat a suicidal woman who had a living will. The woman drank poison in order to kill herself. The woman was still conscious and called an ambulance. Medical staff and doctors refused to treat her because they believed that if they did treat her and save her life, then they could be sued for assault.

The Elucidation to this provision states that treatment and care cannot be stopped for financial reasons alone. If a patient or the patient’s family is no longer able to afford treatment or care, then the government will guarantee treatment and care.

Article 45(2) states that hospitals, and presumably doctors, cannot be sued or prosecuted for attempting to save the life of a person, if that person is to later die.

All current hospitals are given a two-year grace period to come into compliance with the provisions of the bill once it is enacted into law.

The bill comes into immediate force once it is enacted. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.

Sumpah Pocong...

Sumpah Pocong is often referred to as the ultimate oath. However, it is more like an oath of innocence. Sumpah pocong involves the oath taker being wrapped in white cloth and then swearing an oath to their innocence. The white cloth that the oath taker is wrapped in resembles the death robes or shroud that Muslims are buried in. Therefore, the sumpah pocong is considered to be the ultimate oath because one is said to risk death or chronic illness if they lie about their innocence while wrapped up.

The sumpah pocong has always been a part of the Indonesian cultural landscape, and there is many a horror film that uses the pocong as a means of instilling fear. However, the sumpah pocong is coming back to the fore as a means of attempting to clear one's name in legal disputes. Prita Mulyasari, who has been battling the state and public prosecutors in a defamation matter has recently offered to take one, a sumpah pocong that is, as a means of declaring her innocence of a defamation charge.

I am not sure how the sumpah pocong would do this other than perhaps to indicate that Prita did not intend to defame Omni International Hospital. But, a more pertinent question would be, "how long should the courts wait to see whether Prita has told the truth?" This is important because the risk of lying while doing the sumpah pocong is death or chronic illness. It is my understanding that death and chronic illness may not necessarily be instantaneous if the oath taker tells a little fib about their innocence.

In any event, in a case from Banyuwangi in East Java, Rahmatulloh has offered to take a sumpah pocong to prove that he is innocent of charges that he is a shaman (dukun) and that he did not kill his nephew, Hamid, by using black magic on him. Hamid's father, Pon, claimed that Rahmatulloh used black magic to kill his son as his son was healthy one day and then died after suffering from some bizarre symptoms. This presupposes that bizarre symptoms are indicative of black magic. Maybe, the villagers need to sit down and watch a few episodes of House to see that bizarre and weird symptoms are not always indicative of black magic.

TV One carried some coverage of the sumpah pocong being performed. The sumpah pocong oath is usually done in a local mosque under the guidance of an agreed religious leader of the relevant community.

The video is in Indonesian and is embedded below.

Prita Mulyasari -- Defamation -- The Retrial...

The Prita Mulyasari defamation case, or perhaps "saga" is a better word, continues with the retrial commencing in the Tangerang District Court yesterday.

This case really does not contain enough legal issues of consequence for the prosecution to be pursuing this as some sort of test case for the provisions on defamation in the Information and Electronic Transactions Law or for that matter the overlap of those provisions with the ones contained in the Indonesian Criminal Code.

The saga is probably worth a PhD thesis, maybe it could be mine.

Brett over at Spruiked is always a man on a mission, and the Prita case is one he is quite vocal about.

If anything the case highlights the severe need for ongoing or continuing legal education in order to ensure that all legal practitioners are up-to-date with current legal developments and practice. Simply, this was not the case to run as a test case. Even more interesting is that in the retrial the prosecution has decided to lead with expert testimony from a linguist who admits on the stand that he has no real conceptual understanding of what defamation is in the legal sense.

The expert testimony of the linguist was simplistic at best; the contents of the email could be considered defamatory because there was a sentence that questioned the professionalism and politeness of the hospital staff. Ah, OK. But tell me you have more!

The idea that doctors can be unprofessional and hospital staff can be rude and impolite is hardly a revelation. There are probably more people floating round in the world who have a bad story to tell about the way they were treated in a hospital than those that have a good story to tell.

A visit to a few Australian websites and a good read of some of the news there would highlight that it is not uncommon for hospitals to be criticized for their poor service and professionalism. There have been a spate of recent cases over the last few years of women miscarrying in hospital toilets as they were made to wait for treatment.

The idea that Prita was treated unprofessionally and impolitely is not some kind of out of the ordinary shocking development. In any event, and as I have always maintained, even if by some magical alignment of the stars her email was defamatory, then the best course of action to defend the charge would be that the statements contained in the email are the truth.

The reality here is that Prita was diagnosed with dengue fever at Omni and after becoming fed up with the treatment she was receiving at Omni, checked herself out and into another hospital where she was diagnosed with mumps, treated and subsequently got well. At least, this is how I understand it. I am sure that if that is an incorrect understanding someone will inform me of that. And, then I will make a note here (as a postscript).

The fact of the matter is when you are sick and you go to the doctor you are expecting that the doctor will get the diagnosis right and treat you. A misdiagnosis can sometimes happen but all the same a misdiagnosis is a misdiagnosis and in that sense it is not unreasonable to question the professionalism of the doctor involved.

Prita Mulyasari -- Judicial Review of the Banten High Court...

I like OC Kaligis. He is a passionate about lawyering and he has contributed lots to Indonesia's ever-expanding mooting community, which is something I am passionate about as well. However, the desire to seek judicial review of the Banten High Court decision that orders the Tangerang District Court to retry the Prita Mulyasari defamation case is a case of barking up the wrong tree.

To be clear, I do not think that this case should have been heard in the first place, civil or criminal, however now that it has, it is an excellent test case and the team from OC Kaligis' law offices would be better to focus on the manner in which they could conceivably contribute to setting an Indonesian legal precedent. Yes, Indonesia is a civil law country and precedents do not play a big part, I have heard it all before. In a civil law country like Indonesia that is trying to forge a strong reliance on the rule of law means that a precedent like the one that is possible in this case would be a significant achievement, particularly for legal and legislation certainty.

The OC Kaligis team in pursuit of "justice" is going to lodge a brief at the Supreme Court to have the Banten High Court's decision judicially reviewed. A very basic and general analysis of Indonesian law would require that the Banten High Court decision include an error in application of the prevailing laws and regulations or there is new evidence that would render the verdict unsustainable if the court had had access to that evidence at the time the decision was made.

The decision of the Banten High Court appears to be on solid legal grounds. It does not appear to have erred in the application of prevailing laws and regulations with regards to the decision handed-down. Without having read the brief, it is hard to see what new evidence might have come to hand that would render the verdict unsustainable. Although, one of the lawyers from the Kaligis team suggested that he hoped the Banten High Court decision was not influenced by factors other than the prevailing facts in the case. So, maybe the infamous court mafia weaved its considerable magic?

Nevertheless, OC Kaligis is doing his job by seeking a judicial review. This is in the sense that a lawyer must explore every possible avenue that is available to their client in the pursuit of not only justice, but to prove their client's innocence. In any event, the Supreme Court has a history of interesting decisions that overturn lower court decisions. So, an appeal to the Supreme Court could be a winner for Kaligis and his team if the are holding the "right" ticket in the lottery.

I have always argued that the best possible outcome for Prita would be to prove that the defamation did not occur. Or, if it did that there are defenses available, specifically that what was contained into the letter to friends that found its way onto several mailing lists was factually correct. Simply, you cannot defame someone or an institution with the truth. The truth is as it is, truth!

You know there will be more on this as it comes to hand.

Prita Mulyasari -- Defamation -- To Be Retried...

This is unfortunately one of those cases where one just knows what is going to happen before it actually happens. It would also seem that the Banten High Court reads The RAB Experience, but this would not seem to be the case for Prita and her legal team.

The Banten High Court has ordered the Tangerang District Court to retry the defamation case against Prita Mulyasari. This may have come as a surprise to some, but the reality was that in a strict legal sense the decision could not have been any other way. Simply, the Tangerang District Court erred in the manner in which it dismissed the indictment against Mulyasari (news).

The Banten High Court held in its decision to send the case back to Tangerang for trial was that the decision of the Tangerang District Court was unlawful. In essence, this means that the legal reasoning provided to justify the dismissal of the case in the first instance was wrong. The Chief Judge of the Banten High Court, Sumarno, was unequivocal in stating that the Tangerang District Court erred in its judgment.

The debate on the legal reasoning can probably be found in lots of places. However, I wrote about it here and here. However, although the earlier comment about the judges of the Banten High Court reading The RAB Experience was somewhat tongue in cheek, the legal reasoning of the panel of Banten High Court judges explicitly stated that the error of the Tangerang District Court judges was the belief that the Information and Electronic Transactions Law does not come into force until 2010.

The lawyer for Prita Mulyasari, Slamet Yuwono, might be keen to test the defamation provisions himself, as he went on the record to say that, "... I just hope that the high court judges were not compelled by anything other than legal considerations." Ah, Slamet, compelled by what exactly? A small fee from the Office of the Public Prosecutors or the Omni International Hospital? Unfortunately, Slamet, refused to elaborate on what the suggestion was.

The Information and Electronic Transaction Law is contentious. It is contentious not because of the date the law comes into force. It is not contentious as to whether the definition of defamation is clear or not. It is not contentious because the Law provides a two-year window for subordinate or subsidiary legislation to be put into place to give effect to or clarify certain articles. However, it is contentious for the simple reason that Indonesians are currently engaged in a debate about the validity and usefulness of criminal defamation provisions in any law.

The contentious nature of the Law is whether criminal defamation is a means to an end. That is, is the Law a means of stifling legitimate free speech and expression? Further, and perhaps even more important to some, is whether this case highlights the way in which big business can bury consumer complaints about the services received by the consumers themselves?

A quick read of the Letters to the Editor pages of most Indonesian newspapers will see Indonesians writing letters of complaint about one thing or another. Usually about the notoriously bad service provided by banks and financial institutions, and quite often this is to do with credit cards. What the Mulyasari case has shown to date is that big business no longer need to respond to complaints but rather use their vast financial reserves to bankrupt their customers or at least use the threat of doing so.

Going forward. The Tangerang District Court now has no choice but to revisit the Mulyasari case and hear the arguments from both sides. The only way that Mulyasari is victorious here is if her legal team can prove that what was written was not defamation in the manner in which defamation is defined in the Information and Electronic Transactions Law. If they can then the Court can once again dismiss the case and Mulyasari will be free to go on about her life.

Nevertheless, and at the risk of raining on the parade, this is a test case and no matter what the outcome of the retrial, it seems clear that both sides would be likely to appeal if they are on the wrong side of the verdict. This is a case that is going to be tied up in litigation for a good while longer yet.

That said, the only way this would end quickly is if Mulyasari gets the verdict and the Office of the Public Prosecutor in Tangerang declines to appeal the verdict. Judging the performance of prosecutors to date, it would seem that they are intent on seeing this one through to the bitter end. They want a conviction or they are going to die trying.

Prita Mulyasari -- The Case Continues...

The Prita Mulyasari case is an interesting one. It is interesting for a number of reasons. First, among these, is the necessity for criminal defamation in Indonesia. Second, was this the right case to test the those criminal defamation provisions. Finally, did the Tangerang District Court err in the manner in which it dismissed the indictments which set Prita free?

I noted in an earlier post that the manner in which the indictments were dismissed left the prosecutors no alternative but to appeal. The reason is simple, the judgment sets a bad precedent. The idea that a law does not come into force until all of the subsidiary or implementing legislation is in place is clearly not the case in Indonesia. The judges in this case have erred in the application of the law.

Even more so when one considers that the article under which the indictment was issued does not require any subsidiary legislation to be effective. This really was a case of putting the cart before the horse. Ultimately, this undermines legal certainty rather than reinforcing it.

Funnily enough when confronted with the fact that the Tangerang Office of the Public Prosecutor were going to appeal this to the High Court in their pursuit of a conviction, Prita is alleged to have said the following, "Is it the prosecutors' personal problem?" I wonder!

Prita's lawyers from the firm of OC Kaligis have stated that if the High Court accepts the appeal, then this would set a bad precedent. I am not sure how it sets a bad precedent as each case is judged on its merits. If the judges believe their is merit in the appeal then that appeal must be granted leave for the appeal to be heard. Prita's lawyers went further to suggest that if the judges accepted the appeal then this is indicative of their arrogance.

In my mind, if the prosecutors did not appeal and the judges did not accept the appeal, then I would argue that both had erred in their duties to the larger community. It is unfortunate that Prita is going to end up as a pawn in this struggle. But, the reality is that the judges fell victim to public outcry and their legal reasoning for dismissing the case is not sound.

The judges would have been better to allow Prita's defense team to present their case and then agree with the submissions of the defense and then dismiss the case because the elements of defamation had neither been made out nor had the prosecution presented sufficient evidence in support of the indictment. And, finally, the defenses to the indictment were made out.

If the judges had done this then Prita would be a free woman and not worrying about an appeal.

I have made the arguments for and against the prosecutors pursuing this case in other posts and they do not need repeating here. If our interested follow the link.

Manohara Odelia Pinot -- Part XII -- Indonesian Embassy in KL Strikes Back

The Manohara (photo) saga continues. For more on this case as written by yours truly, look here.

If the issues in this case, specifically the allegations of rape and abuse, were not so serious then this case would almost be fun to watch. Manohara and her mother, Daisy Fajarina, have been vocal in making claims against just about everyone who they feel have slighted them in some way in this whole affair. The Indonesian Embassy in Kuala Lumpur was no exception.

Mano, as she is now know affectionately, and her mother, have suggested that the Indonesia Embassy deliberately thwarted any attempts to deal with the matter and in fact was pro-active in keeping Mano in Malaysia because they had been bribed by the Kelantan Royal family.

This piece is not about whether the claims are true or false per se, but rather about the legal implications of making them. And, then failing to produce any evidence in support of those claims. It would not be a first for an Indonesian Embassy and the officials that work within to be accused of corruption and to have that proved. However, in the cases where the allegations were made, subsequent evidence was furnished in order to establish guilt, and then convictions were obtained.

The Indonesian Embassy in Malaysia has laid out in chronological order all of the efforts that they undertook with respect to the Mano case. Could they have done more? Perhaps. However, the claim was that they did not do enough. Therefore, this raises the important question of, "legally how much does an Embassy have to in order to protect its citizens who get into trouble abroad, either legal or personal?"

The Indonesian Embassy in Kuala Lumpur has also indicated that it is intending to sue Mano and her mother if the pair of them cannot come up with evidence to prove their claims. It would be interesting to see how the presidential candidates respond to the Indonesian Embassy threatening a victim of alleged domestic violence in this way. Interesting in the sense of whether they jump on board like they did in the Prita Mulyasari defamation case or just try and avoid it like the plague.

Although, the incumbent president has had a say on the matter here (in Indonesian). Nevertheless, it was pretty much run of the mill stuff. Generally, "this is a serious matter"; "better that Manohara talks to the Minister of Foreign Affairs"; and, "I have instructed the ambassador in Malaysia to watch the developments in this case closely."

Kompas has a detailed account of the chronology of events here (in Indonesian).

My personal opinion is that the burden of proof lies with those making the allegations. In this case the burden of proof in terms of proving the two primary allegations, namely: the Embassy did not do enough and that it accepted bribes, lies with Mano and her mother. If they fail to do so, and if one truly believes in the idea that all are equal in the eyes of the law, then Mano and her mother must be subject to the prevailing laws and regulations governing their conduct.

Despite the threats, the Indonesian Embassy in Kuala Lumpur has expressed their desire to facilitate any action that Mano and her mother want to take in Malaysia.

A simple defense is truth. Hopefully, Mano and her mother have truth on their side and can prove it.

Justitia -- Lady Justice

Justitia or Lady Justice (photo from here) as she is sometimes called represents the power of the courts (through her sword), the need to balance competing interests (scales), and the equality of law (through her blindfold). Lady Justice has not always worn a blindfold.

However, despite the ideals that Justitia aspires to, it is interesting to contrast this with the writings of Anacharsis (Scythian - Ancient Iranian) in the 6th Century BC, who wrote:

Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.

(Plutarch Parallel Lives 'Solon' bk. 5, sect. 2. Cf. 319:19)

The interesting issue for me relates to my previous post on Prita Mulyasari and whether justice is really blind to those events that unfold around it?

Maybe it is time for me to get back into the practice of law...

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.