Playing with Time

In a series of maneuvers that strain the sense of irony, the Indonesian government is finally going after former president Suharto through the civil courts to get back US$1.8 billion — a portion of the US$15 billion in ill-gotten gains he is alleged to have amassed — at a time when Suharto himself is pursuing Time Magazine to collect a US$108 million libel judgment for calling him a crook.

While none of the four presidents who succeeded Suharto have been able to bring the 86-year-old former strongman to justice on criminal charges, and the long-pending criminal case against him was abandoned last year after doctors deemed him unfit to stand trial, President Susilo Bambang Yudhoyono has set his sights on at least recouping some of the family’s domestic assets.

Prosecutors are continuing with a civil lawsuit against Suharto after last month's failure to reach an out-of-court settlement in negotiations ordered by a Jakarta court in line with a Supreme Court regulation that requires mandatory mediation to try and resolve civil disputes before courts may proceed with a case.

Meanwhile, a preliminary hearing into a Rp500 billion civil suit filed by state prosecutors against Suharto’s youngest son, “Tommy” Mandala Putra, got underway on Monday. The state wants to recover losses in a corrupt land swap deal. Although he had been convicted in the case in 2000 and sentenced to 18 months in prison, the Supreme Court later overturned the verdict despite the fact that Tommy went on the lam immediately after being sentenced.

In the Time case, the highest court in the country overturned earlier verdicts by two lower courts that the defamation suit had no merit and ordered the magazine to publish full-page public apologies in the local media, on five local TV stations and in its Asian edition. It must also pay the the US$108 million in damages to Suharto for the 13-page story, titled "The Family Firm," which ran in a May 1999 issue.

While cynics may claim that pursuing Suharto through the civil courts is a tactic aimed at currying with the masses before the 2009 elections, this is nonetheless the first serious attempt ever to go after Suharto family wealth. On the other hand, a pledge by Suharto's lawyers that the money from the Time settlement would be given "straight to the people of Indonesia" looks like its own kind of ploy to garner at least some popular support.

The Time verdict, however, coming soon after Yudhoyono had instructed the attorney general to go after some of the Suharto family wealth, is another reminder of just how much power and influence the Suharto clan can still muster. A statement from the Supreme Court said the article had damaged the reputation and honor of the “mighty general of Indonesia’s armed forces and the former president of Indonesia”.

Time's options

Lawyer Muhammad Assegaf, representing Suharto, has warned that if the magazine refuses to pay up, "coercive measures" could be taken to seize its assets in Indonesia. On at least two counts this is likely to be little more than sheer bluff. First, however flawed the Indonesian judicial process may seem to its victims, the consolation, for those with the money to pay fat fees to lawyers, is that the process can often be drawn out for a very long time, even after an apparently final verdict. Decisions can be challenged by requesting a judicial review, which requires the submission of new evidence that, if known at the time of trial, would have resulted in acquittal, dismissal or a lighter sentence.

Enter the World Bank and the United Nations with their joint Stolen Asset Recovery (StAR) Initiative, designed to fight global corruption. A report last month from this body, of which little is known as yet, called Suharto the world's biggest embezzler of state funds. The timely release of that report, which implied Suharto stole state funds amounting to US$15 billion to US$35 billion, could give the Time defense ammunition in trying to overturn the ruling.

Second, the verdict against Time has put Indonesia once more in the international spotlight over endemic corruption. Time's lawyers could fight back against any asset seizure by playing out their trump PR hand, which is that while a foreign-owned publication is being hit by Indonesia's judiciary for saying that Suharto had embezzled state money, the state is hard at work trying to recover some of that very same money.

So much for the lawyers. Yet there is also another issue at stake – the integrity of the press, which is frequently besieged by its own troubles, based largely on the grueling post Suharto experience of the Tempo Group, which publishes the daily Koran Tempo and the venerable weekly magazine Tempo, launched in 1971 and based on Time's format and style. Long regarded as the country’s most aggressive news magazine, Tempo and its owners have found out just how nasty things can get when the country's elite are stung by the written word, and set out to fight the pen with the sword.

Both publications were sued by an ethnic Chinese tycoon, Tomy Winata, one of the country’s most influential power brokers, in 2003. Tempo had described Winata as a "scavenger extraordinaire" and also speculated that he might have been behind a fire that destroyed the country's main textile market in Central Jakarta a month earlier. Winata’s henchmen attacked Tempo’s office and assaulted journalists although the tycoon denied he was behind the thuggery. Winata then sued and was awarded damages against both publications. Tempo's editor was sentenced to 12 months' imprisonment, although he served no time and that verdict was later overturned on appeal.

Tempo portrays itself as a beacon in an ongoing struggle for press freedom. When it was shut down by the Suharto regime in 1994 it triggered worldwide condemnation. Lawyer Mulya Lubis, who head Time’s defense team, who also headed the Tempo defense team, and expressed concern over possible abuse of power by the judges handling the Tempo v Winata lawsuit. However, he had earlier conceded that his clients "might have made a mistake in the report." Nonetheless, Amnesty International warned at the time that “the imposition of criminal sanctions and excessive fines might lead to much greater caution and self-censorship from the media in their reports about influential figures which will, in turn, negatively impact upon the public’s right to know and the facilitation of open debate on issues of public interest.”

In any event the Tempo case generated renewed criticism of the Indonesia media from some quarters, not only by the elite, with claims that certain elements had abused their renewed by engaging in reckless journalism and irresponsible reporting. Similar criticism has been leveled at Time, with some commentators decrying the lack of any tangible proof of graft provided by the original defendants in the defamation suit filed against the publication in 1999.

The Washington Post, on the other hand, peacefully resolved a 2003 dispute with the Indonesian military (TNI) over allegations that the TNI were involved in an attack on employees of Freeport Mining that killed a US national. A “clarification” published in the paper conceded it had no real evidence to back up the story. The paper’s action stands out in stark contrast to the mess the publishers of Time have been dragged into over the same issue of proof.

The Time verdict, after all, is not the most sensational verdict ever by Indonesia’s Supreme Court. That honor goes to its June 2005 decision to order the conditional release of ‘Tommy’ Suharto after he had served only five years of a 15-year sentence for ordering the murder of a Supreme Court judge who convicted him of corruption.

STATEMENT FROM TIME MAGAZINE RE INDONESIAN SUPREME COURT RULING:

(New York, October 10, 2007)—We are extremely disappointed with the Indonesian Supreme Court’s decision. TIME will use every avenue available to fight for the defense of press freedoms. We will challenge this judgment by filing with the Court a petition for review.

The Court’s judgment is a blow not just to TIME, but also to the rights of a free press in Indonesia. The growth of democratic institutions in Indonesia over the past few years has been inspiring, but the Supreme Court’s decision is stark evidence that the strength of such institutions cannot be taken for granted, and, indeed, that they are still under threat.

The Central Jakarta District Court’s three-judge panel carefully considered all the evidence and concluded that TIME’s article “Suharto Inc.” was balanced, responsibly reported, and published in the public interest. An intermediate appellate court affirmed the victory for TIME.

In reversing the previous decisions and awarding former President Suharto an unprecedented sum of money, the Supreme Court gave little rationale for either the ruling itself or the amount of the damages.

The decision serves as a dire warning to the media, both foreign and domestic. The judgment will inevitably threaten press organizations, most of which would not be able to survive a comparable financial burden and would be permanently silenced. The press will undoubtedly be chilled by the decision, and actions of the government that should be brought to light will go unreported. Democratic freedoms cannot exist without a free and robust press. We are confident that, in a democracy such as Indonesia, freedom of the press must ultimately prevail.