Contradictory Laws in the Journey to Media Freedom in Indonesia

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Iwan Awaluddin Yusuf[1]

After the Reformation, Indonesia has four different presidents (BJ Habibie: 1998-1999, Abdurrahman Wahid: 1999-2001, Megawati: 2001-2004, and Susilo Bambang Yudhoyono: 2004-2009, 2009-now). All presidents have special record related to their effort to bring the freedom of the press into reality. Habibie gained sympathy from the public, particularly mass media society, by initiating and ratifying the Press Law No 40/1999. Habibie decided that a license for starting a newspaper wasn’t needed anymore, and in a very short time the number of newspapers increased from about 200 to 1500. He also decided that other journalists organizations than the state sanctioned PWI would be allowed.

Abdurrahman Wahid did similarly impressive move, which was abolishing the Ministry of Information. President Wahid revived the Press Council, but this time, without any government official involved in it. Megawati revived the ministry and gave it another name, Ministry of Communication and Information. Despites the popularity of the new law (Press Law No 40/1999) launched during the Wahid’s presidency, Megawati’s government was currently working with the House of Representatives to seek if they could revise the law, due to alleged irresponsible acts of free press. SEAPA (2008) noted that the government of President Susilo Bambang Yudhoyono, while publicly voicing support for a free media, had unfortunately not been consistent in its actions. The political leadership’s inconsistency, meanwhile, was mirrored in the courts. In his government, media still has to pay serious attention because some laws those are not in line with the idea of media freedom.

Twelve years after the introduction of reforms, freedom of the press in Indonesia is threatened by a criminal definition and new legislations. The World Wide Press Freedom Index, put out annually by Reporters Sans Frontieres, Reporters Without Borders, is an attempt to measure the degree to which countries provide conditions for an independent media, freedom of information, and the safety of journalists. The first time the Index was published, in 2002, Indonesia ranked 57th best out of 139 countries, with a score of 20.0, the lower the score the better.

By 2003 the Second World Press Ranking saw Indonesia drop sharply to equal 110th out of 166 countries, with a score of 34.25.

2004 the third issue of the Index had Indonesia at equal 117th out of 167 countries, and scoring 37.75.

2005 saw an improvement to equal 102nd out of 167 countries and a score of 26.0.

2006 showed the country held at position 103rd out of 168 countries with a score of 26.0 again.

2007 showed the country held at position 100th out of 169 countries with a score of 30.50.

2008 showed the country drop at position 111st out of 173 countries with a score of 27.0.

2009 showed the country at position 111st out of 175 countries with a score of 28,50.

2010 showed the country drop to position 117th out of 178 countries with a score of 35,83.

2011 he latest ranking shows the country drop sharply to position 146th out of 179 countries with a score of 68.00.

Although Indonesia’s constitution explicitly protects freedom of expression and has Press Law No 40/1999, the judge invoke and even augment the provisions of the criminal code (KUHP) that former Dutch colonial administrators use to suppress opposition to colonial rule. This Code contains articles about libel, defamation against the head of state, insults against public state institutions, leaking state secrets and exaggerated or incomplete news that could lead to social disorder. Journalists and other press members can be charged under either of these two laws (Willem, 2008).

August 15, 2008, Indonesian Constitutional Court rejected the request of a judicial review on defamation articles in the criminal code. The Indonesian Supreme Court in September sentenced Time Asia magazine to pay damages of more than US$100 million to former dictator Suharto for “harming his reputation and honor”. The case went back to 1999 when the magazine reported the Suharto family had transferred some of the 73 billion dollars embezzled during his 32 years in power from Switzerland to Austria (SEAPA, 2009).

The press freedom in Indonesia has been contributing significantly to the democratization process in Indonesia. But there are still many challenges that must be faced and addressed, including the threats that the press still has to pay serious attention to, regarding to some laws that are not in line with the idea of media freedom. Several laws that have a direct bearing on the media were passed by the Indonesian government in 2008. These include Law No. 10/2008 on General Elections, Law No. 44/2008 on Pornography,  Law No. 14/2008 on Freedom to Access Public Information (KMIP), and Law No. 11/2008 on Electronic Information and Transaction (ITE).

The Law on General Elections contains regulations on news publications. Article 99 of Law No. 10/2008 on General Elections provides for a censorship body that can temporarily halts a broadcasting program, reduces the duration and time of news broadcasts, imposes fines, freezes a TV program, and revokes broadcasting and publication licenses, among others.

The Law No. 44/2008 on Pornography for its part carries heavy jail terms, and because the definition of pornography is vague, free speech advocates are concerned that criminal sanctions in the law could create a legal minefield for the press.

Erwin Arnada, editor of the Indonesian edition of “Playboy” was acquitted of publishing indecent photos. The judge rejected the complaint which should have been lodged under the press law. Islamist groups demonstrated throughout the trial and made death threats against Arnada.

Related to this law, the authorities have set their sights on the internet, although this is being framed in the more sellable guise of “protecting children from pornography”. Following the passage of the ITE law, the Ministry of Communication and Information Technology proposed a regulation for government control of multimedia content. Also mooted was a plan to create a monitoring team with the power to order internet service providers to block web sites that contain content it determines is illegal. Championed by Ministry of Communication and Information Tifatul Sembiring from the conservative Islamic-based Justice and Prosperity Party, the plan was shelved in the face of widespread public opposition.

The “Peterporn” celebrity porn scandal, however, involving two explicit clips showing a popular local rock singer having sex with two models and television presenters, revived Sembiring’s ambition to filter internet content. Speaking to reporters on June 10, Sembiring, who said the sex videos made him “feverish”, said that the country needed a rule to ban “negative” content on the web. The proposed decree would make it illegal to distribute or provide access to pornography or gambling on the internet, as well as anything that spreads religious hatred or threats and any news deemed “misleading”. It would also include a blacklist of offensive material monitored by a special task force. President Yudhoyono also signaled his support, saying on June 18 that the country must not stand “naked” before modern information technology (Balowski, 2010).

In 2010, the Ministry of Communication and Information issued a policy restricting Internet freedom. This policy is contained in the draft of Ministerial Decree (Rancangan Peraturan Menteri/RPM) on Multimedia Content, later known as RPM on the Procedure of Handling Reports on Negative Internet Content. Though the RPM has not yet been enacted, a memorandum was distributed to Internet Service Providers (ISP) to filter and block pornographic content over the internet.

This memorandum order does not have a clear definition of pornography. It relies on Law no. 44/2008 on Pornography, which defines pornography in broad terms. As a result, this lack of clear-cut definition on pornography also threatens non-pornographic online content. Worse, the discretion for blocking the content is handed to ISPs – which lack an understanding of what constitutes journalistic writing.

Law No. 14/2008 on Public Access to Information. This new legislation seems harmless and even helpful at first glance, but deeper inspection show troubling provisions embedded in the laws. Law No. 14/2008 on Public Access to Information provides legal guarantees for public access to information—but it also comes with the threat of one-year jail terms for anyone who “misuses” the same information. The Law on Transparency of Public Information which was legalized in April regulates confidential information and public information. Public Information should be open for public access, but this law contains the threat that, “those who misuse public information face imprisonment of a maximum of one year.” These articles will hamper the effectiveness of investigative journalism in using public information to curb the corruption of bureaucracy and state-owned enterprises.

Law No. 11/2008 on Electronic Information and Transaction (ITE). In 2009 there were 25 million internet users in Indonesia, the fifth highest among Asian countries. To this environment, the internet brings even more vibrancy as everyone from bloggers to traditional media tries to exploit the new medium’s accessibility and affordability to the general public. Law No. 11/2008 on Information and Electronic Transactions (ITE) is primarily aimed at regulating electronic transactions. But it has raised concern among journalists because the law carries possible prison terms for online defamation. Article 27 (3) and Article 45 (1) of the ITE law state that “any media which distribute journalistic products containing blasphemy and defamation in electronic form face a prison sentence of up to six years and/or a fine up to a maximum of 1 billion rupiah (US$100,000)”.

These penalties pose an increasingly powerful threat to private citizens expressing their views on line, as Prita Mulyasari discovered in May 2009. Mulyasari, a mother of two small children, was jailed for three weeks and spent over 12 months in the criminal justice process for simply writing a private e-mail to friends complaining about the care she had received at the Omni International Hospital. A few days after the Tangerang District Court ruled in the hospital’s favor in a civil case and fined Mulyasari 312 million rupiah ($33,072), on May 13 prosecutors charged her under the ITE law, which allowed police to imprison her while she awaited trial. Angered that someone could be jailed simply for sending an e-mail, working mother Ika Ardina created a campaign page on Facebook. The page drew hundreds of thousands of fans and led to several other similar groups and pages (Balowski, 2010).

In November 2009, thousands of Indonesians took to the streets to protest the arrests of two KPK commissioners and demanded that Yudhoyono take a stand against corruption. Once again the internet played a key role in mobilizing the campaign. A Facebook page was launched after the pair was arrested in late October for alleged abuse of power (Balowski, 2010). Featuring the logo of the “gecko vs crocodile”—a term first popularized by former national police chief of detectives Susno Duadji when he referred to the rivalry between the police and the KPK — the site and the campaign that followed galvanized a public fed up with rampant corruption. Within just 10 days the group reached 1,002,000 members, with new comments posted almost every second urging the government to take action and heaping scorn on the police. The site was also used to mobilize a series of large and angry public demonstrations. Students on a hunger strike camped out in front of the KPK headquarters vowing not to leave until the pair was set free (Balowski, 2010).

 

Threats from Draft Laws to Freedom of the Media

Besides the threat of new legislation that has been enacted and the persistence using of the criminal code dealing with conflict in the press, there are several draft laws that are also potentially a threat to media freedom in Indonesia, such as State Secret Draft Law and Information Technology-based Crime Draft Law.

1. State Secret Draft Law (RUU Kerahasiaan Negara)

Though President Susilo Bambang Yudhoyono cancelled the State Secret Draft Law in 2009, the Ministry of Defense prepared a new version. The House of Representatives included this latest version in its legislative priority list for 2011.

The State Secret Draft Law, as prepared by the Ministry of Defense, conflicts substantially with Law no. 14/2008 on Open Access to Public Information (Keterbukaan Informasi Publik/KIP). This draft potentially restricts provisions of the Open Access to Public Information Law. In principle, the State Secret Draft Law should be in line with the provisions of the Open Access to Public Information Law. The term ‘state secrets’ also should be clearly defined.

2. Information Technology-based Crime Draft Law (RUU Tindak Pidana Teknologi Informasi)

Information technology-based Crime Draft Law (RUU Tindak Pidana Teknologi Informasi/RUU TIPITI) was a priority bill in the 2010 National Legislation Program. However, the House of Representatives did not have the chance to finalize the law and instead, it has been re-scheduled to 2011. Until now, the government has not prepared any academic paper or official government version of the RUU TIPITI. The Ministry of Communication and Information has been working on the draft, but the draft legislation has not been subject to public consultation.

From the government’s perspective, RUU TIPITI is aimed at providing for punitive actions to address cyber criminals. A poorly drafted law will conflict with other laws such as the Electronic Transaction and Information Law.

 

Prior Agenda in Media Laws

There is no doubt that the freedom of the press, with the implementation of the Press Law No. 40 /1999, is one big step forward in the process of democratization in Indonesia. However, Indonesia has not got there yet and must keep fighting for the press freedom. Currently there are still some other agenda related to the revision of media laws. Based on the Alliance of Independent Journalists (AJI) statement, it will be important to monitor closely a number of draft laws which are now prioritized in the National Legislation (SEAPA, 2010):

1. Revision of Broadcasting Law No 32 2002. There are a number of critical points in the draft revision of the Broadcasting Law, such as the role of the Indonesian Broadcasting Commission as a regulator, the shift from national broadcasting to network broadcasting system, the existence of community broadcasting agencies, the merger of government-owned radio and television stations of RRI and TVRI, and so forth. This revision should be closely monitored to ensure that the current democracy in broadcasting does not backslide and guarantee for diversity of content and diversity ownership.

2. Telematics Convergence Draft Law (RUU Konvergensi Telematika). This draft law regulates the inevitable convergence of telecommunication, broadcasting and the emergence of New Media. The government conducted public consultation for the draft law in 2010, but the draft has not been discussed by the House of Representatives. In terms of substance, there are a number of articles that require critical analysis–particularly those that regulate content. This draft law requires all telematics application industries, including content providers such as the online media, to obtain licenses from the Ministry of Communication and Information. This is contrary to Press Law no. 40/1999, where the media no longer need Press Publication Licenses (Surat Izin Penerbitan Pers).

3. Revision of Electronic Transaction and Information Law (UU Informasi dan Transaksi Elektronik/UU ITE)

The revision of the UU ITE was put in the 2010 priority list of the House of Representative’s National Legislation Program. However, the government did submit the revised version to the House of Representatives. The discussion of this revision was rescheduled to 2011.

4. Draft Revision of Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP)

This draft revision was also prioritized in the 2010 National Legislation Program, but has also been rescheduled for 2011. This draft will replace the current Criminal Code, a legacy from the Dutch colonial time. There are positive and negative provisions in this new draft. Though human rights principles are upheld, there are many articles that are weak. Criminal provisions were not revoked, and worse, the number of the articles increased. Clauses on defamation, unconfirmed news and so forth are the dominant features of the draft.


[1] Communication Department, Islamic University of Indonesia.  Jl. Kaliurang Km. 14,4 Yogyakarta 55584 Indonesia.

 

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