http://thejakartaglobe.com/home/free-speech-under-attack-in-the-courts/319404 July 21, 2009 Joe Cochrane
Free Speech Under Attack in the Courts Prita Mulyasari was charged with defamation under the 2008 Electronic Information and Transaction Law. Although the court threw out her case, the mother of two could still find herself back in the dock.(Photo: Safir Makki, JG) Bogor. Irwansyah is in a bit of a bind. The 33-year-old chief of the Bogor city police crime unit is investigating a criminal defamation complaint against an 18-year-old girl who called one of her friends a "dog" on the social networking site Facebook. Although common sense dictates that the police resolve this teenage tiff over a boyfriend with a stern lecture at most, followed by an apology and handshake, the complainant isn't budging. So Irwansyah is collecting evidence and consulting with experts on whether the alleged Facebook offense should go to court - which could result in one of the girls going to prison for six years under the controversial 2008 Electronic Information and Transaction Law (ITE). "Since both parties haven't decided to make peace, the investigation continues," he said during an interview at his office. "I don't have the authority to stop the investigation." In fact, he said there's enough evidence of criminal defamation in the case to forward it to a prosecutor. If that happens, the nation could be in for another bout of seeming nonsense that threatens to make a mockery of its criminal justice system. The case of Prita Mulyasari, the e-mail-writing mother of two who was tossed in jail by police and prosecutors in Tangerang, Banten, under the ITE's anti-defamation articles for complaining about the service at a local hospital, is still leaving a foul taste in the country's collective mouth. But it's just one of several defamation cases involving politicians, public officials, the Armed Forces, journalists and even teenage girls in the past year. But amid what's become a very embarrassing public legal circus, the real debate is drowned out: Should citizens be thrown in prison for writing a letter to the editor or poking fun of someone on Facebook? Should journalists be locked up for writing about a public government investigation into alleged medical malpractice in West Java? Why does the country still have Suharto-esque laws that make defamation a criminal offense with prison sentences? The public officials who passed the ITE have yet to answer any of those questions. When Prita became a cause celebre - thanks to the media and sites like Facebook, where her case first became a public issue - presidential contenders Susilo Bambang Yudhoyono, Megawati Sukarnoputri and Jusuf Kalla were quick to denounce her plight. "If [the defamation law] is considered troubling, it is possible for it to be reviewed," Yudhoyono told reporters while on the campaign trail last month. Kalla chimed in: "She [Prita] could have been placed under city arrest instead of being directly detained. How come writing an e-mail led to her detention?" Well, mostly because Kalla's Golkar Party, Yudhoyono's Democratic Party and Megawati's Indonesian Democratic Party of Struggle (PDI-P) all endorsed the ITE's passage in the House of Representatives (DPR) in April 2008. But the presidential candidates tried to distance themselves from the law, as did House Speaker Agung Laksono, who told reporters - incorrectly - that prosecutors in Tangerang acted improperly in prosecuting Prita because the ITE doesn't come into effect until 2010. (Article 54/1 of the law states that it is "effective on its enactment date" of April 21, 2008.) Legal and media experts say the House's passage of the ITE, as well as anti-pornography and public information laws, were the legislature's disguised attempts to limit free speech and freedom of expression. "From e-mail to jail, then there's no freedom left in the world," said O. C. Kaligis, who is Prita's defense attorney. Dramatic as that may sound, there are troubling questions about the judgment of lawmakers, as well as the Yudhoyono government, which under the Constitution works in concert with the House to pass legislation. Analysts have said that bills are oftentimes so badly written - most are packed with the particular interests of each political faction to avoid fights, even if articles contradict each other - that the laws that emerge are not helpful to the public at large. "Both the government and DPR are to blame" for the ITE, said Hendrayana, executive director of the Legal Aid Foundation. "There's no synchronization or harmonization on legislation. Laws contradict each other." Prita, who contends that doctors at Omni International Hospital in Banten misdiagnosed her and then refused to release medical records that may have proven her claim, had every legal right to complain verbally, by hand and by e-mail, under the 1999 Law on Consumer Protection, according to Gatot Dewa Broto, the head for public relations at the Ministry of Communication and Information Technology. "The right of the customer is the right to reply or to transmit his or her complaint," he said. "Prita herself was a former patient at that hospital. There was no reason to detain Prita." However, the ITE, first drafted by Gatot's ministry, clearly states that police and prosecutors can detain suspects because Article 43 sets a prison sentence of up to six years. Still, Gatot maintains that "the law itself is good" despite public outrage over Prita, but that the ministry would welcome a legal review and revisions of the ITE. When asked why the ministry would welcome challenges to a law that it drafted, Gatot said, "The concept came from the ministry, then it was discussed with the Justice and Human Rights Ministry. Then in the House, normally, there were a lot of quite deep and critical discussions." Really? When? Leo Batubara, deputy chairman of the Press Council, said the House neither asked for its opinion on the ITE nor invited any of its members to testify as experts to any House commissions. He also claims the House intentionally inserted the six-year prison sentence into Article 45/1 of the law to make it tougher than the current Dutch-written penal code, which already mandates prison terms for defamation of up to 14 months. "There's still an old paradigm among our government officials and regulators that they still need . criminal law to protect government officials in the media," Batubara said. "But also to intimidate and deter, and make our people very careful in expressing criticism." He also said that former President BJ Habibie, while releasing political prisoners, opening up the press and calling new elections during the heady days after the Suharto regime fell in 1998, refused to budge on the issue of criminal defamation. "Some of our leaders in the government and DPR still don't like the idea of freedom of the press," Batubara said. However, there is growing agreement that local police and prosecutors are equally guilty of overzealous or even malicious prosecutions of defamation cases, or a plain lack of common sense. Just take a look at the ongoing trial of 10 boys arrested for shining shoes without a license and "gambling" - they were playing a kid's coin-tossing game with a Rp 1,000 (10 cents) prize. Who decided to arrest, jail and take them to court? Police and state prosecutors in Tangerang. In Prita's case, members of the Banten Prosecutor's Office were accused of professional misconduct for allegedly adding charges under the ITE to her dossier after police refused to do so. They also ordered Prita to be detained without getting a judge's order, after which the chief of the prosecutor's office was transferred. They apparently were also completely oblivious to the Consumer Protection Law - or skirted around it. "Everywhere in the world, there is abuse of power, there is injustice," Kaligis said. The Banten Prosecutor's Office did not respond to several phone calls from the Jakarta Globe seeking comment about the cases of Prita and the gambling shoe-shine boys. On July 7, Attorney General Hendarman said prosecutors would appeal the decision by the Tangerang District Court to throw out Prita's case on the grounds that the ITE isn't in effect until 2010. But the attorney general quickly added that he would still pursue disciplinary action against the first prosecution team for alleged misconduct. Hamzah Tadja, a deputy attorney general, last week criticized the Tangerang prosecutors for pursuing the gambling case against the 10 schoolboys and promised to look into the matter, given the controversies surrounding the prosecutors. Gatot of the Ministry of Communication and Information Technology confirmed that the ITE is in effect now, but said the ministry hasn't said anything because it fears the Tangerang District Court will lock up Prita again. "This is something we don't want," he said. "We have to ask the police, the judges, the courts and others . please, don't interpret this law on such a narrow perception. Otherwise, there will be many victims." Indeed, a businessman who wrote a complaint letter to the press about a local developer who allegedly swindled him was found guilty of defamation on July 15. The court handed him a suspended six-month sentence, likely choosing to avoid more public anger, but the fact remains he was convicted. If there's one silver lining from the defamation controversy, it's that the pillars of the nation's democracy functioned in Prita's case: The press reported her story, causing public outrage and social activism that prompted authorities to release her. The ball is now in Yudhoyono's court to review the ITE. One caveat is that the Constitutional Court has already struck down a challenge to its defamation article and six-year prison sentence. For her part, Prita is considering filing her own lawsuit against Omni hospital and the Banten Prosecutor's Office, even as she waits to see if she must go to court again. "I'm just thinking positively and praying for the best. I'm just very tired of all this," she said. So is most of the country. [Non-text portions of this message have been removed]
