On 23 July, Toby Mendel, Senior Director of Law at ARTICLE 19, appeared before the Indonesian Constitutional Court as an expert witness in a case challenging, among other things, imprisonment for defamation. Mendel, who appeared before the Court via video-link, argued that imprisonment for defamation is inconsistent with international guarantees of freedom of expression and that it is increasingly rare for democratic states around the world to impose criminal penalties in defamation cases. (30-JULY-08)
From an ARTICLE 19 press release

The constitutional challenge arose from two cases, one involving Risang Bima Wijaya, a journalist who was imprisoned for six months for making allegations of sexual misconduct against a local businessman and newspaper owner. The second case involved Bersihar Lubis, who was criminally convicted for defaming the Attorney General by calling his decision to ban a book ‘dumb? The lead lawyer in the case is Anggara, representing LBH Pers, an Indonesian organisation that provides legal support to the media.

At issue in the case are provisions of the Indonesian Criminal Code that allow for imprisonment for conviction for defamation, and also for public bodies to bring such defamation cases.  These provisions are, it is submitted, in contravention of Indonesian constitutional guarantees of freedom of expression. In giving evidence before the Indonesian Constitutional Court, Mendel argued that imprisonment for defamation is unnecessary, and therefore contrary to international guarantees of freedom of expression, since civil penalties provide sufficient protection for reputation. He also argued that public bodies should not be allowed to sue for defamation since they do not have a reputation of their own as such, and that this allowance constitutes an abuse of public funds.

Hearings in the case continue. A decision is expected later this year or early 2009. If successful, the case would provide an important precedent in the Southeast Asian region, building on the example of Cambodia, where the possibility of imprisonment for defamation was abolished in 2006.