Facts

The Indonesia Supreme Court has awarded Soeharto (the former President of Indonesia) US$ 106 million settlement from TIME Asia magazine, for guilty of defamation which is published a series of articles about corruption scandals involving his family in 1999.The verdict is superseded the verdict of the District Court of Central Jakarta and Jakarta High Court which is in favour of TIME.

Based on TIME article, the Soeharto family had over 30 odd years amassed a fortune of about US$70 billion which it stashed in various places around the world. Moreover, the Soeharto family transferred their money from Switzerland to Austria after 1997-1998 Asian economic crisis. 

A three judge panel of the Supreme Court lead by ARMY MAJOR GENERAL GERMAN HOEDIARTO, along with M.TAUFIK and BAHAUDDIN QOUDRY has awarded the verdict by using Penal Code as a legal basis.

 Issue

Whether the verdict on TIME vs Soeharto case is in line with Indonesian Constitution and Law No. 40 of 1999 regarding Press (September 23, 1999) (“Law 40/99”). 

Analysis 

Law 40/99 guarantees the Freedom of Press in Indonesia. Moreover, it also guarantees the press to conduct their activities to find, acquire, and publish the idea and information to public (Art. 4(3) Law 40/99). When press conducts their activities, press shall ensure Right of Reply and Right of Correction. Right of Reply means that an individual or a group of people has right to defend oneself against criticism (Art. 1(11) Law 40/99).  It offers a possibility to react to any information in media presenting inaccurate fact which affect the personal rights. Right of Correction means that an individual has right to correct the inaccurate information that is published by press, either about himself or other people (Art.1(12) Law 40/99). Therefore, all cases pertinent to the media activities shall be settled by the mechanism in Law 40/99. Law 40/99 is lex specialist. 

The libel and defamation that stipulated in Penal Code of Indonesia is not related to the media activities. However, those provisions (Chapter II Art. 130 – Art 139 Penal Code regarding Crimes against the Dignity of the President and Vice President) are related to the criminal activities.  

Excerpt of Penal Code 

Article 134

Deliberate insult against the President and Vice President shall be punished a maximum imprisonment of six years a maximum fine of three hundred rupiahs. 

Article 136 bis 

Deliberate insult in article 134 also includes the act described in article in Article 315, if this has been committed in the absence of the insulted person, either in public by acts or not in public but in the presence of more than four persons or only in presence of a third party who is present notwithstanding his own will and who takes offence of it, by acts as well as by words or in writing. 

Article 137

(1) Any person who disseminates, demonstrates openly or puts up in writing or portrait containing an insult against the President or Vice President with intent to make the contents public or enhance the publicity thereof, shall be punished by a maximum fine of three hundred Rupiahs.

(2)   If the offender commits the crime in his profession and during the commission of the crime two years have not yet elapsed since an earlier conviction on account of a similar crime has become final, he may be deprived of the exercise of said profession.  

TIME vs Soeharto case: The legal basis for this case shall be Law 40/99, not Penal Code because this case is related to the media activities. In the event that an individual want to challenge the inaccurate information in media,  the respective person can use his right e.g. Right of Reply and Right of Correction. By using Penal Code as legal basis to settle media dispute, the punishment can be very heavy either the compensation or imprisonment.  

Unfortunately, the Judges have used Penal Code as legal basis for Time vs Soeharto case. It means that there is no legal certainty in media Indonesia. Luckily, TIME is a big-worldwide media company so that they can afford to pay that penalty. The question is “How’s about the small media company in Indonesia?” This court’s ruling had discouraged the media in Indonesia and was setback to Freedom of Press.