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PRESS FREEDOM AND THE PROCESS OF LEGAL REFORM


Press Freedom in Indonesia: The Latest Situation

Is Indonesia’s press free? Press freedom in Indonesia appears to face a long, twisted road. Challenges both from the government and public continue. According to the Alliance of Independent Journalists (AJI) Indonesia’s record, there were 43 assault cases, including four legal charges, against journalists and the media in 2005. The number of assault cases against journalists and media increased to 53, or by 18%, in 2006. This included seven legal charges against journalists and media.

The situation is disheartening, particularly since the press is generally acknowledged as the fourth pillar of democracy. Press in a country that is struggling to adhere to the principles of democracy like Indonesia influences the society significantly. Media reports affect individuals and groups, be it directly or not. Apart from its function to channel information to the public and to educate the public, the press plays the role of “social control” of public officials and the general public.

There are a number of requirements media must fulfil to play such a big role. One of the prerequisites is the existence of sufficient space of freedom for media to perform their functions. The implementation of a code of conduct (kode etik) must coexist to maintain the media’s professionalism. To emphasize the importance of press freedom, Mochtar Lubis, a senior journalist and former Chief Editor of Indonesia Raya, says,”Press freedom is an element of a developed and highly constructive human civilization, which honours the values of humanity, and should press freedom be non-existent, human dignity will thus disappear”.

Prof. Satjipto Rahardjo, a legal expert of the Diponegoro University, supported his statement by saying, “The press functions as a means to uphold truth and justice”.

Moreover, Prof. Dr. Bagir Manan S.H., MCL, in his capacity as Chief Justice of Republic of Indonesia, reminded law enforcers and Indonesian courts about this particular issue on September 14, 2004. Chief Justice Bagir said, ”I appeal for judges to be careful in hearing press or press practitioners, do not let the judges’ hands be dirty in repressing press freedom that eventually will take the life of democracy and, thus, repress the freedom of judges. Press freedom is not only an instrument of democracy but also the guardian of democracy. Judges especially need democracy because it is only democracy that guarantees freedom of judges and the independent of judiciary”.

The three opinions are in accordance with the spirit of the Press Law, No. 40 Year 1999, saying that press freedom is a form of popular sovereignty and an important element to establish the democratic life of society, the nation and the state, which is based on law.

Threats and Challenges of Legal Reform to Guarantee Press Freedom

Indonesia has adopted a series of legal instruments to guarantee press freedom. However, these are not equal with the threats against press freedom. The threats may come from corrupt government or society, which do not have sufficient understanding of the role of the press. It must be noted that many threats against press freedom have been executed through legitimate legal mechanisms, such as the legislative proceedings of the House of Representatives (DPR) or through court proceedings. On the other hand, non-legal mechanisms and violent attempts to control the press continue to happen.

Legal charges and lawsuits against journalists and media are usually based on the existing law, such as the Criminal Code or Civil Code’s articles about libel, defamation against the head of state (the case of Supratman, the Chief Editor of Rakyat Merdeka daily), insult against religion (the case of Teguh Santosa, the Chief Editor of Rakyat Merdeka Online), or assault of chastity (the case of Erwin Arnada, the Chief Editor of Playboy Magazine). However, most charges levelled against journalists and media are related to defamation.

Historically speaking, the defamation charge has been used to protect state power from criticism or public control. The offence is later used for slander or defamation cases involving individuals.

In a democratic, sovereign body politic that upholds human rights like Indonesia, the bungled use of defamation charges carries the potential to hamper democracy, restrict freedom of expression and freedom of speech as well as limit freedom of information. Moreover, the use of defamation offence is likely to create legal uncertainty because every conduct linked to freedom of expression and freedom of speech could potentially be defamatory and because the case is not always judged on objective assumptions and subject to impartial interpretation.

The Criminal Code covers defamation in Chapter XVI about Defamation, which consists of

Article 310-321 and Article 36 paragraph (5) letter (a), Article 57 letter (d), Article 36 paragraph 6, Article 57 letter (e), Article 46 paragraph (3) letter (a), and Article 58 letter (d) Law No 32 Year 2002 on Broadcasting.

Table 1. Articles about Defamation in the Criminal Code (KUHP)

No

Article

Criminal Offence

1

310

Aspersion (Pencemaran)

2

311

Defamation (Fitnah)

3

315

Vilification (Penghinaan Ringan)

4

317

Defamation Accusation (Pengaduan Fitnah)

5

318

False Suspicion (Persangkaan Palsu)

6

320

Defamation against Dead People (Pencemaran Nama Baik Orang Mati)

7

321

Defamation against Dead People by Writing or Images (Pencemaran Nama Baik Orang Mati Dengan Tulisan Atau Gambar)

Table 2. Articles about Defamation in the Civil Code

No

Articles

Claims

1

1365

An act against the law (perbuatan melawan hokum)

2

1366

Negligent, Inadvertent, Indiscreet (Lalai, tidak hati-hati, ceroboh)

3

1372

Vilification (Penghinaan)

4

1373

Defamation (Fitnah)

5

1375

Vilification against Dead People (Penghinaan Terhadap Orang Mati)

6

1377 paragraph (2)

Continuous Vilification (Penghinaan Terus Menerus)

In the midst of controversy about the distinctiveness of the Press Law, the press in Indonesia welcomed the Supreme Court’s rulings, verdict MA No.1608 K/PID/2005 and verdict MA No.903 K/PDT/2005, which set jurisprudence of the Press Law for the settlement of every media dispute.

In both of its rulings, the Supreme Court considered that the philosophy adopted by the Press Law has positioned the national press as the fourth pillar of a democratic country. The Supreme Court also emphasized the importance of legal instruments and the press code of conduct to ensure the establishment of free press and to prevent the violation of press freedom. Therefore, penalization in the form of punishment does not reflect the attempt to uphold free press; on the contrary, it endangers press freedom. Therefore, guidelines set by the Press Law must be prioritised rather than other legal stipulations.

The Supreme Court also upholds attempts to prioritise the right to respond and the examination by the Press Council rather than legal proceedings to settle media disputes. The Supreme Court considers these a means of settlement of media disputes. The instrument of the right to respond, according to the Supreme Court, balances the necessity of press freedom and the protection of individual interests from false media reports.

Press freedom, the Supreme Court says, is a conditio sine qua non (prerequisite) for the establishment of democracy and body politic. Without press freedom, freedom of expression and freedom of speech will be useless. Therefore, any legal action against media that commits a violation shall not endanger democracy and the state.

Despite the Supreme Court’s attempts to uphold press freedom, the Press Council finds 25 Laws and/or Bills indicating the potential to hinder or restrict press freedom. The government’s intention to change the Press Law was gravely noted by all components of the press. The plan is seen as the government’s strong intention to regain control over the press. Previously, the government has been successful in regaining its control over broadcast media through Law No. 32 Year 2002 on Broadcasting.

It’s not time to enjoy a good sleep yet. Journalists, media and those in Indonesian society who are concerned about democracy should not be indolent in monitoring and involving themselves actively in the process of legal reform in Indonesia. We must keep guarding and guaranteeing press freedom that has been fought for with blood and tears for almost a decade.

FROM BPUPKI MEETINGS TO THE SECOND AMANDEMENT OF UUD 1945

The Indonesian Press community honours Liem Koen Hian, the Chief Editor of Sit Tit Po. He was the one who proposed the press freedom stipulation in the Constitution during the meetings of the Body for Investigating Preparation Attempts of Indonesia’s Independence/Badan Penyelidik Usaha Persiapan Kemerdekaan Indonesia (BPUPKI).

He was quoted as saying, “The proposed Grondrechten (Basic Law) shall deliberate not only the rights to convene and congregate but also the rights for drukpres, onschenbaarheid van woorden. Press freedom is imperative to reduce the evils of the society and the state”.

Unfortunately, efforts to guarantee press freedom in the original 1945 Constitution were not specified in a clear article, but instead the issue was put under the stipulation of freedom of expression in Article 28 of the 1945 Constitution, saying: “The freedom to unionise and convene, expressing thinking through spoken and written words and others are ruled by Laws”.

When the Constitution of Republic of Indonesia was changed into the Constitution of United States of Indonesia 1949 and Provisional Constitution (UUDS) 1950, the issue of press freedom was ruled by Article 19 saying: “Every body has the right of freedom to own and express opinions”.

The similar stipulation can be found in the formulation of Human Rights and Rights and Obligations of Citizens by the Konstituante (Constitution making body) that also put press freedom under an Article about freedom of expression, saying, “Every citizen has the right of freedom to own and express opinions, either in spoken or written words”.

Efforts to guarantee press freedom in the Constitution re-appeared following the second amendment of the 1945 Constitution on August 18, 2000 that deliberated Article 28 F saying, “Everybody has the right to communicate and obtain information to develop themselves as individuals and their social environment, as well as the right to seek, obtain, own, store, process and deliver information by using whatever channel available”.

The stipulation has, actually, yet to satisfy the press community because they initially expected a stipulation that explicitly provides a constitutional guarantee prohibiting laws that may limit press freedom. However, the existing stipulation, to a certain extent, has already guaranteed press freedom in the Constitution.

LAW AND FREE PRESS

The downfall of the government of Soeharto in 1998 marked the beginning of the transition to democracy in Indonesia. The event was followed by a series of policy reform in all aspects, including related to the press. Important reforms that deserve note by the Indonesian press are: the revocation of the regulation of the Information Minister on publishing licenses, known as Surat Ijin Usaha Penerbitan Pers (SIUPP); the termination of the privilege of the Indonesian Journalists Association/Persatuan Wartawan Indonesia (PWI) as a single association of journalists; and – the culmination – the birth of the Press Law and adoption of the protection of freedom of expression through Amendment II of the 1945 Constitution.

The assurance of press freedom in Indonesia is formulated and stated in a number of existing legal instruments in Indonesia. The assurance of press freedom can be found in the following:

  1. Article 28 F Amendment II UUD 1945
  2. Article 21 MPR Decree XVII/MPR 1998 on Human Rights Charter
  3. Article 14 paragraph (2) Law No. 39 Year 1999 on Human Rights
  4. Law No. 40 Year 1999
  5. Article 19 paragraph (2) International Covenant on Civil and Political Rights, which has been ratified through Law No. 11 Year 2005

A number of reform pillars bring a sliver of hope. However, a series of charges and lawsuits against journalists and media continue to be launched. Many of these legal actions ignore the legal instruments which were set up to protect press freedom. Indeed, the homework is not finished yet.

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4 comments
  1. Bryant said:

    A very well-discussed post, Anggara.

    I’m sorry for inadvertently missing your name in my post. It was not intentional. How could I forget you? 🙂 See my revised post.

    And no, I cant still speak Bahasa. I was just joking in my post.

    Anyway, hope to see you soon!

  2. I thought the situation was a lot better than during new order era; but it’s probably a never ending journey; it depends also on the level of education of the society.

  3. peyek said:

    “The press functions as a means to uphold truth and justice”

    seems the purpose of function

  4. anggara said:

    @bryant
    just a joke my friend

    @aroengbinang
    i also agree with you sir

    @peyek
    it really should be like that sir

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