Defamation: No More?

In a 4-9 vote, the Constitutional Court declared defamation against head of state as unconstitutional. On the basis that it's against human rights – no-brainer there – and that in practice it's difficult to distinguish between critic and defamation. The court also throws a number of other good punches. It said defamation against head of state should be dealt with the same way as defamation against other ordinary citizens. In other words, the president must file charges, which means they'd have to testify that he/she feels humiliated.

The court, as always, fails to guide us mere mortals on the boundaries of these 'freedom of speech'. Instead of setting out the boundaries, it goes in 'speculation mode' identifying political scenarios where defamation clauses would hinder expression.

For those not in the loop, Indonesia's amended constitution is rated among the most liberal as it adopts various human rights etc etc. But putting it into practice is a complete different ball game. When drafted, few were informed what those provisions entail. And, unlike in more mature democracies, the text didn’t come from experience – if not the exact opposite since we barely had any freedom of speech at previous time in our history. In sum, the court is left with the mounting task of putting the clauses into Indonesia's context.

Too tall of an order perhaps.

The dissenters in this decision take the normal route – clauses against defamation are everywhere internationally too. Unlike some other dissents, this one might is quite cunning. It said in other countries possible abuse of defamation clause can be curbed by their constitutional courts since they can preside over the enforcement of the law. This is different here where the court's jurisdiction is independent, separate from the general courts. So, the court is actually arguing for an expansion of its jurisdiction from reviewing laws against the constitution into looking at how the laws are enforced.

Another spin on this constitutional court decision is how it is affecting those currently under investigation, in court proceedings or now rotting in jail for committing a crime that's now declared unconstitutional?

Due to the way Constitutional Court is structured in Indonesian judicial system, its decision has no bearing to on-going proceedings (let alone past ones). So the guy who filed the petition, Eggy Sudjana, is technically still open to prosecution.
Whacky right – as much as I hate Eggy's guts! Moreover to those rotting in jail – how unconstitutional is it to let them continue to rot there based on a crime that's declared unconstitutional.

The lawyers are quick to argue the legal hurdles – yes, they're (only) good at that. But they could've channelled it to argue on how it is to be done. For a start they could argue the convicts should get a pardon. That is if SBY wants to free those sentenced to defame him or his office in the first place. How wicked is that!

And, given SBY's penchant for political scores., them convicts are not the group he wants to target either. Hell, some of these guys (convicts serving more than 5 years sentence) aren't eligible to vote in the first place.