26
AMICUS CURIAE
protect a person’s reputationgood name. Nevertheless, in reality, the provisions on defamation in general are
problematic because these provisions can very easily be interpreted broadly.
62. Susi Dwi Harjanti, an expert in constitutional law of Padjadjaran Univeristy, clariied that the protection of
human rights should not always be done by applying provisions from criminal law. They should, however, be
protected in another legal area… basically, the interests that are protected by this Article are in the domain of the
interests of the individual. Because of this, in the context of legal science in general, the regulation of interests
among individuals is more emphasized in civil rather than criminal law.
Several problems that arise in the regulation of defamation especially in criminal law are:
VI.1. It stops discussion or debate in public institutions.
63. In general the provision on defamation in criminal law is clearly aimed at stopping, or spreading fear
in undertakings, debates or discussions regarding institutions or government oicials by giving a broad
deinition which at once prohibits criticism of the head of state or a state institution, or a public oicial, by
adding criminal punishment on the crime of defamation directed at the said objects. In many cases, this hazy
formulation of norms in criminal law on defamation can be used efectively by public oicials and public igures
to stop criticism towards them and to stop debate and
BRIEFING PAPER NO. 22010
27
discussion on maters that atract the atention of the public. It is precisely provisions such as this that can
efectively foster self-censorship by the media and members of society.
VI.2. It protects feelings rather than reputation.
64. Another signiicant point is that the use of norms for punishment of degradationdefamation has the high
potential of being misused to protect feelings rather than reputation. The main thing about protecting feelings
is that it is very subjective and cannot be measured by external factors; a strong proof for this mater is the
statement of a person “considered insulting” measured with the feelings of a person “considered insulted”. These
penal provisions that protect feelings can efectively place victims witnessing for themselves in a strong
position, because what is needed by victim-witnesses is explanation to the court that the defamatory statement
constituted an atack, and the practical impossibility for the accused to provide evidence that can support their
position. Honor is used in much juridical terminology in criminal law. Honor in itself is an ambiguous technical
term because it can be connected with one or two of these factors, namely, it is connected with the personal
feelings of a person andor it is connected with society’s view of that person.
VI.3. It protects public order rather than reputation.
65. In reality, in many countries, provisions about criminal defamation are oten misused for the purpose of
28
AMICUS CURIAE
protecting public order rather than protecting a reputation. The root cause of this confusion can be found
in the ofense of defamation in previous times. In the past, defamation could actually give rise to public order
disturbances such as duels or even war. The problems in this ofense are
1 The high potential to cause confusion in its application
such as the emergence of duplication with another provision, which will cause confusion regarding
which legal standards are applicable.
2 It can lead courts to apply the ofense of defamation on cases without the aspect of public order which
can result in a verdict that is proportionate in the context of public order, yet be very excessive in the
case of defamation.
3 The relationship between the ofense of defamation and public order can cause the court to ask for
individual responsibility for the reactionresponse of other parties rather than to evaluate it in the context
from which the statement concerned arose.
VI.4. The lack of suicient defensejustiication
66. In general the provision for criminal defamation does not provide suicient justiication, like the dispute about
whether a certain statement is an opinion or a fact that is incorrect or whether there is justiication for publishing
the said statement. In fact in general, the provision on defamation allows the court to argue that the said
statement is an atack on reputation rather than to prove whether the said fact can be proven.
BRIEFING PAPER NO. 22010
29
VII. The Problematic of the Ofense of Defamation in Indonesian Law
67. Even though Indonesia formally acknowledges and guarantees freedom of speech in its constitution, in the
practice of legislation, freedom of speech can still meet challenges especially when there is a cross-conlict
between the right to one’s reputation and the right to freedom of speech. In many cases, the court favors
the right to reputation compared to clearly weighing and considering these two rights which are equally
acknowledged.
68. The history of the ofense to reputation itself, based on the opinion of Nono Anwar Makarim, can be traced
back to 1275 when the Statute of Westminster introduced what was called Scandalum Magnatum which stated that
“ . . . .from now on it will no longer be allowed that a person directly express or publish false news or stories that can cause
conlict or the possibility of conlict or slander between the king and his people or great persons in this country.
” Scandalum
Magnatum itself was meant to create a process of peace- keeping in a situation that can be a threat to public order
rather than to protect reputation and to vindicate one’s good name.
69. There have been too many armed brawls and killings that have occurred due to a reaction of an insulted person to
what was perceived as an insult from another person. In fact revenge has taken a more important position
compared to mere protection of reputation. In bygone times, information was rarely obtained and was diicult
30
AMICUS CURIAE
to conirm. Rumors easily led to fencing or pistol duels in public. In fact ights of this sort spread until they took
the form of a rebellion. According to the Supreme Court of Canada, the purpose of the said law was to prevent
false rumors from circulating. In a society dominated by landlords with such great powers, the wrath of the local
high ranking oicial could in fact threaten a country’s peace.
70. The ofense against reputation in Indonesia can be found in Chapter XVI WvS on Defamation. There are three main
problems in looking at the ofense against reputation in WvS, namely:
VII.1. The deliberate intention to defame 71.
Although in general the ofense against reputation in WvS requires the element of “deliberate intention to defame”,
evidently the Supreme Court since its Decision No 37 K Kr1957 dated 21 December 1957 has consistently stated
that “the existence of animus injuriandi the deliberate intention to defame is not required.” What is interesting
is that this element of deliberate intention to defame can be interpreted in such a way that the action of sending
a leter to an oicial institution that atacks the good name and honor of another person is already accepted
as proof that there is this element of intention to defame.
VII.2. Separation of opinion and fact
72. The ofense against reputation in WvS clearly does not make a strong distinction between opinion and fact,
