INDONESIA
By Herlambang P. Wiratman*
The Jakarta Post-Mar 16, 2018
Controversy surrounding the draft amendment of the Criminal Code (KUHP) has included potential legal attacks on journalists. The draft reintroduces articles on defamation, insult and slander, the spread of false news, incitement, public decency and crimes against state security.
These provisions are no longer relevant, as they were partly annulled by the Constitutional Court in 2006, which repealed articles on insulting the president and vice president.
Interestingly, the law making regime today believes limiting free expression and the press would benefit democracy and the rule of law, as reflected from two legal developments — the latest circulated draft amendment of the Criminal Code (the Feb. 2 draft) and the recently passed amendment to the 2014 Legislative Bodies ( MD3 ) Law, which empowers the House ethics council (MKD) to take legal action against those who criticize the House and its members.
Overall, these laws and means of criminalizing the press, potentially leading to the imprisonment of journalists, will significantly affect public participation in Indonesia’s democracy. Hence, we need to decriminalize the press instead of attacking them in the name of “responsible democracy”.
The dominant debate on criminalizing the press is reflective of the fact that, regardless of dramatic political changes, the mindsets of most legal thinkers on criminal law, either in the House, the government or even scholars of law, have remained the same since the introduction of the Criminal Code by the Dutch colonial rulers and its continued use under the authoritarian New Order.
Even though the Supreme Court has stood up for the constitutional guarantee press freedom on most occasions, criminal law has continued to be used to harass journalists, editors and publishers.
By using interdisciplinary studies of law in my 2014 thesis on the press, law and politics in Indonesia, I have shown how criminal provisions are unjust and detrimental to Indonesia’s press freedom, as these have simply been too easy to abuse. I observed three legal reasons for this.
First, my historical overview of legal cases against the press showed that neither authoritarian nor “post-authoritarian” regimes have used criminal provisions with due regard for press freedom, since the Soeharto era till the present.
The cases of former president Megawati Soekarnoputri versus Rakyat Merdeka daily ( 2003 ), Tomy Winata vs Tempo magazine ( 2003 ) and the 2007 prosecution of the writer Bersihar Lubis for his column in Tempo magazine, “The story of the stupid interrogators”, which criticized the bans on history school books by the attorney general in 1981, have demonstrated how the government has continued to pressure the press or even silence them.
Second, the defamation articles can be interpreted or abused by the public and authorities to attack the press, with a maximum sentence of two years’ imprisonment or a fine. Interference with press freedom by vigilantes, such as in the case of businessman Tomy Winata vs Tempo, or the attack of the Islamic Defenders Front (FPI) on Playboy magazine, have shown where this may lead to, with the state refusing to act to protect the press.
Third, it has become clear that in Indonesia a precedent is insufficient to prevent unlawful criminal prosecutions. The Supreme Court has argued that press cases should be resolved on the basis of the Press Law, instead of the Criminal Code.
Notably in its 2005 ruling in the defamation case of Tomy Winata vs. Tempo magazine, Tempo magazine was indicted for “spreading false news” and “slander of defamation” after publishing reports questioning the role of the businessman in the Tanah Abang market renovation.
However, the Supreme Court made three points perfectly clear: (1) The lower courts have been mistaken in applying the Criminal Code, since the facts of the case showed that the accused had carried out its activities within the Press Law; (2) As the press is the fourth pillar in a democracy, judges should contribute in supporting legal protection of press workers, and consider the Press Law as a lex specialis or special law. Criminalizing the press goes against press freedom and hence the rules under the Press Law should be prioritized over other rules.
Of particular importance is the Supreme Court’s opinion that “strengthening press freedom” should be central and that punishment contradicts this purpose. This decision was a clear message from the highest judicial institution to avoid the use of the Criminal Code for prosecuting journalists, editors or publishers — but it has gone unheeded by public prosecutors and the lower courts.
Indonesia’s position on the press freedom index has improved, as cited by global media watchdog Reporters Without Borders. To improve the freedom of the press, many countries have begun changing criminal provisions against the press into private law.
Over 50 countries have diverted charges of malicious wording, insults and defamation, from criminal law to private law. Several countries have even repealed rules on defamation and insult because they were deemed insufficiently objective and therefore difficult to prove.
The United Nations and the Organization for Security and Cooperation in Europe are among the global bodies that have also recognized the threat to press freedom posed by criminal defamation laws, and have recommended they be abolished. Indeed all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.
Interestingly, the government seems to have started to reconsider the application of the Criminal Code against the press. For instance, the head of the National Law Development Agency (BPHN) Ahmad M Ramli, said earlier that, “[…] it is unnecessary to criminalize journalistic works.”
Hence, press freedom needs not only a liberal environment; it also needs protection. The Criminal Code should adopt greater protections, especially for the sake of democracy, the rule of law and human rights. Otherwise, Indonesia will regress and fall not only onto an undemocratic path, but also further deteriorate its rule of law and constitutional system.
*The writer is a senior lecturer and director of the Center for Human Rights Law Studies at the School of Law, Airlangga University in Surabaya. His PhD thesis in 2014 was titled Press freedom, law and politics in Indonesia, for the Leiden Law School, the Netherlands.
(first published in The Jakarta Post – http://www.thejakartapost.com/academia/2018/03/16/decriminalize-press-to-boost-democracy.html)
