Increasing Press Freedom in Indonesia

Increasing Press Freedom in Indonesia: The Abolition of the Lèse Majesté and ‘Hate-sowing’ Provisions

Naomita Royan∗

This article considers the issue of press freedom in Indonesia by examining two recent

Constitutional Court decisions: (1) the Eggi Sudjana and Pandapotan Lubis case, in which the

Constitutional Court reviewed Criminal Code provisions regarding the offence of deliberately

insulting the President or Vice-President; and (2) the Panji Utomo case, in which the Con-

stitutional Court reviewed Criminal Code provisions regarding the expression of hostility,

hatred or contempt towards the Indonesian government. In both cases, the Constitutional

Court ruled that the articles in question – which enabled the state to penalise the media for

merely reporting either insults to the President or Vice-President or expressions of hostility,

hatred or contempt towards the Indonesian government – were unconstitutional, as they

contravened constitutionally enshrined rights including equality before the law, freedom of

expression, freedom to communicate, freedom of association and freedom to obtain infor-

mation. The Constitutional Court’s decisions are a victory for freedom of expression; unfor-

tunately, however, the rulings do not apply retrospectively to the cases of Eggi, Pandapotan

and Panji. The abolition of these offences confirms Indonesia’s trend towards an increasingly

unrestricted press that is gradually being disentangled from government interference.

On 6 December 2006, Indonesia’s Constitutional Court handed down a groundbreaking decision that signalled a victory for freedom of expression in that country. In Indonesian Constitutional Court Decision No 012-022/PUU-IV/2066 (Eggi and Pandapotan) the court held that the provisions in the Criminal Code (KUHP, Kitab Undang-Undang Hukum Pidana) on insulting the President or Vice-President – the lèse majesté provisions – were unconstitutional and contrary to Indonesia’s inde-pendent modern democracy. The majority ruled that the Criminal Code provisions contravened constitutional provisions that guarantee equality under the law (art 27(1)),1 the ability to communicate and obtain infor-mation (art 28F), 2 and freedom of expression (art 28E(2)-(3)). 3 In its decision, the court specifically stated that arts 134, 136 and 137 of the Criminal Code no longer have binding legal power. Six months later, in Constitutional Court Decision No 6/PUU-V/2007 (Panji) the Constitutional Court repeated this feat, finding that arts 154 and 155 of the Criminal Code were also unconstitutional, as they con-travened constitutionally protected principles of freedom of association

2008] Increasing Press Freedom in Indonesia 291

(art 28)4 and freedom of expression (art 28E(2)-(3)), and, consequently, no longer had the force of law. These Criminal Code provisions, which criminalised expressions of hostility, hatred or contempt towards the Indo-nesian government and the dissemination of those expressions, are popularly known as the ‘hate-sowing’ provisions. This article argues that these decisions, which abolished provisions encouraging media self-censorship, demonstrate that the country is shifting away from its repressive colonial and post-independence, authori-tarian legacy towards a more open, rights-based democracy, with growing space for the media. The article does this by tracing the state’s historical repression of the print media, finding that in the post-Soeharto period many of the state’s control mechanisms are now being removed, using the lèse majesté and ‘hate-sowing’ provisions as an example of this. It con-cludes that, despite the continued existence of some restrictive criminal laws, press freedom has steadily increased in Indonesia over the past decade, and state control of the print media has significantly diminished.

Indonesia’s Print Media: Then and Now Although the media is now a powerful participant in Indonesian politics, there is also a long history of press repression by the state (Romano, 2003; Kitley, 2001; Sen and Hill, 2000; and Hill, 1994). All the same, journalists have consistently demonstrated a view that the media should be free,5 and have, in this sense, a journalistic culture similar to that of the US media (Manzella, 2000: 310–11). This is at odds with the form of so-called ‘development journalism’ practised in Malaysia and Singapore,6 where the mainstream print media generally believes that it must work in partner-ship with the government, and rarely contests the government’s impo-sition of controls.7 During Indonesia’s early revolutionary period, media restrictions were stringent, in order that the government could prevent unfavourable reporting concerning its actions and detention, and intimidation of journa-lists was not uncommon (Bies, 2001). Soekarno was President from 1945 to 1968, and during the 1959-66 period of ‘Guided Democracy’ he rein-stated the repressive and ‘executive heavy’ 1945 Constitution, which continued to operate without amendment during the New Order regime (Indra, 1990: 43–5). Soeharto’s control of, and influence on, the executive arm of government allowed him to indirectly control the media. Gazali (2002: 121) asserts that, throughout Soeharto’s New Order regime, the government used the press ‘as a state ideological apparatus’, that is, a mechanism to disseminate state propaganda. It was able to do this through its control of the media via strict licensing laws regulating the ownership of print and broadcast media.8 Companies could be stripped

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of their licences for seemingly insignificant criticisms of, or comments about, the government, leaving the media under ‘constant threat’ (Franks, 2003: 2–3). The state emphasised the role of ‘development journalism’,9 continuing to exercise indirect control of the media industry through that ideology. Further, although Soeharto introduced a policy of keterbukaan or ‘openness’, his New Order government also initiated crackdowns on the print media (Gazali, 2002: 130). One prominent example was the notorious revocation of the operating licences of well-known publications TEMPO, Editor and DeTIK for non-compliance with licensing requirements, and publication of content that allegedly posed a threat to national security. This revocation was initiated by the Minister of Information in 1994, and upheld on appeal to the Supreme Court in May 1996.10 In addition, the state was not beyond directly threatening the media following the publi-cation of information it deemed unsuitable, or giving publications direct editorial ‘advice’ – a practice popularly known as budaya telepon (tele-phone culture), creating a new culture of self-censorship within the media (Kitley, 2001: 258; Romano, 2003: 49). In May 1998, political upheaval in Indonesia led to President Soeharto’s resignation. Within months of his Vice-President, BJ Habibie, replacing him as President, the newly appointed Minister of Information removed the Ministry’s right to revoke press licences11 and, in 1999, a new Press Law (No 40 of 1999) was enacted. This Law abolished licensing requirements for print publications,12 leading to a proliferation of media companies operating throughout the country on an unprecedented scale. For example, when Soeharto resigned there were 289 authorised publi-cations operating in Indonesia but within just 16 months this had increased to more than 2000 publications (Romano and Seinor, 2005: 111). This amounts to an increase of more than 600 per cent in less than two years. The removal of the licensing requirement thus had the direct effect of vastly increasing the size and diversity of Indonesia’s press, but it also increased its independence, as it no longer needed to censor itself for fear of losing the licence to publish. Nevertheless, other means of controlling the press remained, for example, criminal defamation and sedition laws. In contrast to their treat-ment of the licensing laws, none of the four governments in power since 1998 has sought to remove these laws, perhaps because of their use to protect both elite reputations and national security. These Laws thus remain in operation, potentially available for use by the state should it choose to silence the media. In practice, however, the state has not used these Laws extensively, although private individuals and companies con-nected to the government do sometimes instigate criminal defamation


prosecutions of journalists and media companies.13 This is often heavily criticised, both domestically and internationally;14 but, in any case, the continued existence of some of these laws is uncertain, as the increasingly democratic political climate, as well as recent Constitutional Court decis-ions, demonstrates that they can be successfully challenged.15 Paradoxically, although the Indonesian press remains formally limited by various laws and regulations, it is, in reality, relatively uncon-strained by them. In many ways it has been able to play the media’s celebrated role as the ‘fourth estate’, acting as the guardian of the public interest and breaking political scandals to the public,16 even to the extent of causing politicians to resign or be removed.17 Further, the press in Indonesia does not refrain from reporting on what are deemed ‘out of bounds’ sensitive and controversial issues in other parts of South-East Asia, including private scandals with direct political ramifications for high state officials or institutions.18

The Sedition Law Regime

The Operation of Sedition Law in Indonesia Modern sedition law proscribes ‘words or conduct deemed to incite dis-content or rebellion against the authority of the state’. The offence is derived from that of treason, and is believed to have developed from a belief that rulers possessed a ‘divine right’ to lead and that, as such, criticism of them was both sinful and unlawful (Davidson, Friesen and Jackson, 2001: 6; ALRC, 2006: 48–9, 49–53; Hamburger, 1985). This traditional belief is, of course, no longer widely held, and most common law jurisdictions that have retained sedition laws now include in them the element of ‘incitement to violent lawlessness against constituted authority’, although, historically, an absence of intention to incite violence was irrelevant (Davidson, Friesen and Jackson, 2001: 11; ALRC, 2006: 50). The offence thus ceases to revolve around the ruler’s reputation (which is left to the ambit of defamation laws), instead concerning itself with the ruler’s ability to govern peacefully. The retention of laws based on the traditional rationale is now questionable, at the very least, in coun-tries founded on democratic principles. In such nations, a ruler is the people’s representative and, as such, does not possess a ‘divine right’ but is held accountable to the electorate, the members of which are entitled to criticise and question their elected representatives. In Indonesia, as in many other countries, sedition law has been used as a tool for rulers to protect their reputations.19 Before the Constitutional Court’s decisions in Eggi and Pandapotan and Panji, sedition law in Indonesia encompassed six main categories of offences. Relevant to this


article are the categories of deliberately ‘insulting the President or Vice-President’ and ‘expressing feelings of hostility, hatred or contempt towards the Government’. These are articulated in provisions of the Criminal Code that have since been abolished: arts 134,20 136,21 137,22 154,23 and 155.24 The Criminal Code categories of ‘involvement in a mutiny with the intention to overthrow the government’ (art 107), oral or written provocation (arts 160 and 161), and insulting a ruler or public body (arts 207 and 208) are also discussed briefly. Article 134 of the Criminal Code criminalised deliberately insulting the President or Vice-President, while art 154 of the Criminal Code crimi-nalised publicly expressing feelings of hostility, hatred or contempt towards the Indonesian government. A common feature of both these pro-visions is that neither of the offences they created contained a mens rea element: it was not necessary for there to be actual or intended conse-quences to the insult or expression of hostility (for example, an intention to incite violence against the President or the government). Additionally, in the case of art 134, the Criminal Code did not define the term ‘penghinaan’ or ‘insult’, resulting in vagueness and uncertainty as to what could be construed an insult. Further, by contrast to common law countries where the term would have derived its definition from a body of case law, the operation of Indonesia’s civil law legal system (which, like most other European-derived legal systems around the world, does not formally apply the stare decisis principle) served to exacerbate this definitional uncertainty (see generally, Bell, 2008: 363–81). The result was an ambiguous law of uncertain application.

Consequences for the Print Media and Freedom of Expression As a consequence of the operation of this vague law, the media faced the difficulty of not knowing what would be construed as an ‘insult’ for the purpose of the criminal law relating to sedition. The sedition provisions were widely used during Soeharto’s New Order regime and, although their use declined post-Soeharto during the rule of Presidents Habibie and Wahid, the state recommenced using them against the print media (and others) during President Megawati Soekarnoputri’s term. 25 President Susilo Bambang Yudhoyono’s successor government also continued to use the sedition provisions.26 As pointed out in Panji’s submission in his application to the Consti-tutional Court (at 18), the operation of arts 154 and 155 of the Criminal Code had the potential to repress freedom of the press, because these provisions were available to silence those who criticised the Indonesian government, as well as those who reported criticism of it. Initially introduced by the Dutch to prevent and punish criticism of the colonial administration, these provisions became known, as


mentioned, as the ‘hate-sowing’ articles (Haatzai Artikelen in Dutch). Post-Independence Indonesian governments retained these measures for their obvious utility in curtailing political opposition and social dissent. Even following the collapse of the New Order government they continued, like the ‘insulting’ provisions, to be used, including by the governments of Presidents Wahid,27 Megawati28 and Yudhoyono.29 The institutional weaknesses of the Indonesian legal system – for example, the apparently selective enforcement of laws,30 and entrenched corruption in the judiciary31 – were not the only factors that could be exploited by the state if it wished to penalise the press. The lack of definitions in the law enabled it to undermine the very operation of the media, as journalists would necessarily be reluctant to criticise the leaders of the country without knowing when that criticism was seditious.32 Further, the operation of arts 137 and 155 directly targeted journa-lists and the press in a broad sense, in two ways. First, they criminalised disseminating ‘insults to the President or Vice-President’ (art 137) or ‘expressions of feelings of hostility, hatred, or contempt towards the Indo-nesian Government’ (art 155(1)) with the intention of publicising those views. Second, they provided that repeat offenders who disseminated those views in the course of their occupations could be ‘prohibited from exercising the aforesaid profession’ (arts 137(2), 155(2)). The existence of these provisions may have resulted in the press refraining from reporting the words of those who did express unfavourable opinions about the President, Vice-President and government – generally, the opinions of political activists and other politicians – for fear of being heavily penalised by the state. Indeed, the possibility of being prohibited from practising journalism must have weighed heavily on journalists’ decisions about what to report and write. Although there is no conclusive evidence of this self-censorship effect, given that the Law’s usage was frequent during the New Order regime, it is reasonable to assume that the media must have learnt to navigate state sensitivities in its reporting of controversial state-ments and opinions regarding the President, Vice-President, and the government itself. Further, NGOs report that the provisions have trapped journalists as well as activists and politicians (see, for example, IFEX, 2007; Hendratmoko and Maryadi, 2007; Southeast Asian Press Alliance, 2006; Djajanto, 2005; Amnesty International, 2001; Human Rights Watch, 2003). The existence of a clause that made it possible to ban journalists is another example of how these laws worked against the media. It allowed the state to target certain individuals and silence them by preventing them from participating in the work of the mass media. Those who re-peatedly attempted to voice legitimate criticisms (either their own, or made by others) concerning the President, Vice-President or the govern-


ment risked losing their source of income. Even if it rarely utilised the law, the state had the means to curb the activities of its critics and remove them from public discourse. Through the operation of these provisions, the state could control what was said in the public space by punishing those who defied it, or threatening to punish, expressly or implicitly, thereby promoting a culture of self-censorship among journalists.33 Accordingly, even if the state rarely utilised these sedition provisions, their formal, public removal from the collection of ‘weapons’ available to be utilised against the media – made possible by the Constitutional Court’s decisions in both cases – signalled Indonesia’s continuing evolution towards the institutionalisation of far greater freedom of expression.

Supratman Insults the President In 2003, Supratman – then an editor of the Indonesian-language tabloid Rakyat Merdeka – published four ‘humiliating’ headlines for which he was charged with insulting President Megawati. Translated, the four head-lines read ‘Mega the leech!’ (Rakyat Merdeka, 2003b); ‘Mega’s mouth stinks of diesel!’,34 ‘Mega’s more vicious than Sumanto’,35 and ‘Mega’s in the same class as a regent’.36 During his trial, Supratman argued that he had not deliberately insulted President Megawati, but had merely ‘relayed the people’s mes-sage’: the headlines in question were direct quotes from participants at public protests. Supratman argued that his actions fulfilled one of the ‘duties’ of a journalist.37 While the South Jakarta District Court found he had not deliberately insulted the President and therefore acquitted him of breaching art 134, the court nevertheless convicted him of breaching art 137(1) by dissemi-nating insults to the President with the view of making them publicly known. Justice Zoebar Djajadi found that Supratman had published articles that contained insults to the President, and sentenced him to a six-month jail sentence suspended with 12 months’ probation (Jakarta Post, 2003e; Moore, 2003: 8). Consequently, although Supratman was not imprisoned immediately after his conviction, if he re-offended within 12 months, he would be imprisoned for six months. Supratman appealed his conviction to the High Court but more than three years later no result has been disclosed. 38 The analysis below suggests, however, that the appeal is unlikely to succeed.

Indonesia’s Constitutional Court The original version of the Indonesian Constitution did not create a Constitutional Court or any explicit version of judicial review. While he


was President, Soeharto enacted Law No 14 of 1970 on Judicial Power, confirming that Indonesian courts did not have jurisdiction to exercise judicial review. Consequently, until 2003 statutes produced by the legis-lature could not be reviewed by the courts (Lindsey, 2002: 260–1).39 This created a situation where there were no safeguards to protect legal insti-tutions, enabling the state to contravene constitutional principles without check, as was particularly the case during President Soeharto’s rule (Lindsey, 2002: 260–1). Following the collapse of the New Order regime, Indonesian govern-ments have been keen to revise the Constitution to reflect the country’s recent reforms and its new status as a post-authoritarian democracy. Indonesia’s Mahkamah Konstitusi or Constitutional Court was estab-lished in 2002 pursuant to the third amendment to the Indonesian Constitution. It commenced operating in 2003 and derives its power as the first and final forum for the review of legislation (though not delegated legislation) from art 24C of the Constitution40 and Law 14/1985 on the Supreme Court.41 The full Constitutional Court consists of nine members – three nominated by each of the Supreme Court, House of Represen-tatives and President. The judges elect their own Chief Justice from among their own number. The Constitutional Court allows parties with legal standing to seek judicial review of statutes (undang-undang) enacted by the legislature,42 that is, parties adversely affected by specific Laws are now able to chal-lenge the constitutionality of those Laws, and have done so with varying degrees of success in a large range of cases, including, for example, Eggi and Pandapotan and Panji (to be discussed below), as well as Masykur Abdul Kadir,43 and Dawud Djatmiko.44

The Eggi and Pandapotan Case In May 2006, Pandapotan Lubis, a prominent political activist, partici-pated in a rally outside the Hotel Indonesia in Jakarta, displaying a poster requesting that President Yudhoyono and Vice-President Kalla stand down from office (Republika, 2006a). He was subsequently charged pursuant to arts 134, 136, and 137 of the Criminal Code with insulting the President and Vice-President. Pandapotan applied for judicial review of the provisions, arguing that articles under which he was charged con-tradict arts 27(1), 28E (2)-(3) and 28J45 of the Constitution. The other petitioner in this case, Eggi Sudjana, was a lawyer and political activist who in 2005 alleged, in a public report to the Corruption Eradication Commission, that media mogul Harry Tanoesoedibyo had given Jaguar cars to one of President Yudhoyono’s sons and to three of the President’s closest advisers. Tanoesoedibyo made a police report, following


which the police commenced investigations into the case and found the claims to be groundless. Eggi personally apologised to Yudhoyono for the accusations46 and, in January 2006, issued a further public apology. In May 2006 he was, nevertheless, charged with insulting the President. In his application for judicial review, Eggi argued that arts 134 and 136 of the Criminal Code were unconstitutional as they contradicted art 28F of the Constitution. Both applicants argued that the laws were remnants of Indonesia’s colonial past, a time when such provisions were deemed necessary to stifle dissent against Dutch rulers and to protect the ‘reputation and honour’ of the Dutch Crown. They also argued that the lèse majesté provisions were contradictory to Indonesia’s current position as an independent and democratic country (Eggi and Pandapotan at 24, 52). A 5–4 majority of the Constitutional Court held that arts 134, 136 and 137 of the Criminal Code were indeed unconstitutional.47 It held that, in Indonesia’s current democratic system, it is unnecessary for the President and Vice-President to have extra protections for their reputations beyond what is already available to all citizens. According to the judges, the Con-stitution states that sovereignty lies in the hands of the Indonesian people, who select the President and Vice-President, and as such the President and Vice-President should not be given privileges that increase their standing or level of ‘honour’, as such an outcome would directly con-tradict the principle of equality before the law: Eggi and Pandapotan at 59–60. The lèse majesté provisions were also found to contravene arts 28D(1) and 28F of the Constitution, which provide as follows:

Article 28D(1): Each person has the right to the recognition, the security, the protection and the certainty of just laws and equal treatment before the law.

Article 28F: Each person has the right to communicate and to obtain information in order to develop themselves and their social environment, and the right to seek out, obtain, possess, store, process, and transmit information using any means available.

The majority held that they created uncertainty of law (arising from the difficulty in interpreting which protest, statement of opinion or thought constitutes an insult to the President or Vice-President), contrary to art 28D(1), and can therefore hinder the ability to communicate and to obtain information guaranteed by art 28F of the Constitution: Eggi and Pandapotan at 60. Finally, the court found that the provisions contradicted art 28E(2)-(3) of the Constitution, as they were designed to be used as a ‘legal apparatus’ to prevent open demonstrations, thereby preventing the realisation of a


now constitutionally entrenched right to freedom of expression: Eggi and Pandapotan case, p 60. These articles provide as follows.

Article 28E(2): Each person has the freedom to possess convictions and beliefs and to express their thoughts and attitudes in accordance with their conscience.

Article 28E(3): Each person has the freedom to associate, gather, and express their opinions.

The majority also commented that insults to the President and Vice-President ought instead be prosecuted in accordance with other provisions in the Criminal Code. Articles 310–321, which regulate defamation, could, they said, be used in situations where the President or Vice-President’s personal reputation was damaged, while art 207, which criminalises insult to rulers and public bodies, could be used in situations where the President or Vice-President is insulted in his or her official capacity: Eggi and Pandapotan at 60. The majority’s observation that use of art 207 should replace use of the abolished provisions in situations when the President or Vice-Presi-dent is insulted in his or her official capacity does, however, contradict its earlier rulings in this same judgment on the incompatibility of the ‘insul-ting the President or Vice-President’ provisions with the Constitution. Article 207 of the Criminal Code operates to criminalise publicly insulting ‘a ruler or public official’.48 It is used in tandem with art 208, which has the identical effect of targeting the media as art 137 did. It criminalises disseminating insults to a ruler or public official with the view of making those insults publicly known, and provides that repeat offenders who disseminate insults in the course of their occupation ‘can be prohibited from exercising the aforesaid profession’.49 However, unlike the abolished provisions, arts 207 and 208 are delik aduan – complaint-driven. A complaint from the ruler or public official insulted is required before the state can proceed with investigations into the incident and/or prosecution of the alleged perpetrator. As with the abolished provisions, arts 207 and 208 exist as a way for the state to suppress the media and dissent and are also remnants of an era when rulers and state institutions were beyond criticism. Although there is no evidence to suggest that these (potentially) repressive pro-visions are used as frequently post-Soeharto as they were during the New Order regime, it is surprising, given the similarity of the ‘crimes’, that the Constitutional Court encouraged use of these provisions even while denouncing the basis for, and use of, the ‘insulting the President or Vice-President’ provisions.50 However, since arts 207 and 208 are complaint-driven, any prosecutions pursuant to those provisions stem from com-plaints lodged by rulers or public officials. Under this regime, rulers and


public officials will no longer be able to justify repressive actions with the excuse that charges were initiated by the state.

The Panji Case Dr R Panji Utomo is a rights activist and was the Director of the Inter-Barracks Communication Forum in Aceh. In September 2006, he staged a rally at the Aceh Rehabilitation and Reconstruction Agency to protest against the Indonesian government’s lack of progress in assisting victims of the tsunami and earthquake in Aceh and Nias. Although Panji himself was not involved in any violent activity, the rally ended violently. He was detained, charged, tried and convicted by the Aceh District Court of contravening arts 154 and 155 of the Criminal Code, with a sentence of six months’ imprisonment (Panji at 10). Panji challenged the legitimacy of the provisions underpinning his conviction, arguing that arts 154 and 155 of the Criminal Code were unconstitutional as they contravened arts 27(1), 28, 28C(1)-(2),51 28D(1),52 28E(2)-(3) and 28F of the Indonesian Constitution. Panji also argued that arts 107, 160, 161, 207, 208 of the Criminal Code violated those same con-stitutional rights as they were substantively similar to arts 154 and 155 (and to the recently abolished arts 134, 136 and 137) of the Criminal Code. On 17 July 2007, the full Constitutional Court upheld part of Panji’s application, 53 holding that arts 154 and 155 of the Criminal Code contravened arts 28 and 28E(2)-(3) of the Indonesian Constitution, and no longer had the force of law (Panji at 80). The Full Court found that the formulation of arts 154 and 155 of the Criminal Code facilitated misuse of the provisions, as their meanings could be interpreted in multiple ways, making it easy to characterise legitimate and constitutionally protected criticism of rulers as expressions of ‘feelings of hostility, hatred or contempt’. This was especially the case since there was no requirement to prove that a person had actually spread those feelings or incited hatred or enmity among the populace. The court also found that, historically, the provisions were intended to snare those fighting for independence from the Dutch and were thus clearly neither appropriate nor necessary in independent Indonesia (Panji at 77–8). To this end, the court also stated that its stance in Eggi and Pandapotan was relevant here (at 79). With respect to the remaining provisions challenged by Panji – arts 107, 160, 161, 207 and 208 of the Criminal Code – the Constitutional Court found that as he was not personally adversely affected by those laws, Panji did not have the requisite legal standing to apply for judicial review of those provisions. The Court was, therefore, not required to con-sider the constitutionality of those provisions (Panji at 70).


In terms of the court’s abolition of arts 154 and 155, this decision was an absolute victory for freedom of expression and the media. Unlike Eggi and Pandapotan, the Constitutional Court here did not in any way qualify its rejection by nominating the use of other provisions (whether repressive or otherwise) of the ‘hate-sowing’ provisions.

Conclusion: Applying the Decisions Following this decision, those familiar with common law legal systems would expect that as the crimes with which Eggi, Pandapotan and Panji were respectively charged, and of which they were convicted, have since been declared unconstitutional, their convictions would be dismissed and their sentences quashed. However, in Indonesia, decisions concerning judicial review are applied differently than they generally are in countries with a common law tradition. In Indonesia’s civil law tradition, rulings finding statutes unconstitutional operate prospectively, that is, legislation is not declared void ab initio, as would be the case in most common law courts. This system is not necessarily unusual in civil law systems54 and, indeed, even has some (albeit very limited) application in certain common law courts.55 The prospective operation of its decisions means that the Constitut-ional Court’s judgments can only be taken into account in relevant cases that arise after the decision was handed down. Accordingly, although prosecutors can no longer charge persons for breaching arts 134, 136, 137, 154 and 155, the Court’s ruling to that effect would have no impact on cases that have already been decided, or are currently in motion.56 Accordingly, on 22 February 2007, the Central Jakarta District Court convicted Eggi of breaching arts 134 and 136 of the Criminal Code (Antara News Agency, 2007). The Court, led by Justice Andriani Nurdin, held that, although the relevant provisions were now void, because Eggi had insulted the President and Vice-President before the provisions had been abolished (his offence was committed on 3 January 2006, while the pro-visions were declared unconstitutional on 6 December 2006), the charges against him could not be dropped.57 Eggi was sentenced to a three-month jail sentence, suspended, with six months’ probation (Antara News Agency, 2007). Given the outcome in Eggi’s case, it seems unlikely that the charges against Pandapotan will be dropped. On this same basis, it seems likely that any appeal brought by either Supratman or Panji on the bases that art 137(1) or arts 154 and 155 (of which they were respectively convicted of breaching) have been abolished and are no longer binding will be unsuccessful. Instead, the courts are likely to rule that the parties had breached the provisions before their abolition.58


Implications for the Press and Freedom of Speech The Constitutional Court’s decisions mean that five Criminal Code pro-visions can no longer be used to detain and charge Indonesians for ‘insulting’ the President and Vice-President, or for expressing ‘feelings of hostility, hatred or contempt’ towards the government. As such, the Constitutional Court’s decisions are a cause for cele-bration by activists, journalists and the general public: Indonesia’s leading court held that two aspects of sedition law – insulting the President or Vice-President, and expressing feelings of hostility, hatred or contempt – are obsolete and contrary to current beliefs on Indonesia’s independence and the status of democracy in the country. When considered alongside the removal of licensing regulations, these decisions are additional examples of the gradual removal of legal barriers to freedom of expression in Indonesia. The decisions thus contribute significantly to the growing inde-pendence of the Indonesian print media. Despite the continued existence of some criminal laws targeting the media,59 it cannot be said that the Indonesian press is currently controlled to anything like the extent to which the press in some other ASEAN countries are. It reports boldly and freely on a wide range of subjects, including on race, politics and religion, topics that are formally or informally banned in, for example, Malaysia and Singapore.60 This freedom can be attributed, at least partly, to the increasing democratisation of Indonesia, manifested in, for example, a Constitutional Court performing independent judicial review and the operation of a visible multi-party democracy: since the demise of the New Order govern-ment, democratic elections have resulted in four Presidents from four different political parties in less than a decade. This rate of stable, democratic change is unprecedented in Indonesia and, indeed, in other countries in the ASEAN region. Arguably, the precarious nature of power in democratic societies (specifically, the non-existence of a guarantee that any particular individual or party will retain power, unlike in a Soeharto-style dictatorship) has resulted in Indonesia’s rulers refraining from clamping-down on a media that could one day assist them to regain power, or to maintain it. Instead, the government seems to be gradually elimi-nating laws that restrict the press.

Notes ∗ Graduate at Law, Baker & McKenzie; LLB/BComm (Melb). This article was written

while the author was a Research Fellow at the Centre for Media and Communications Law, University of Melbourne: <http://law.unimelb.edu.au/cmcl> as part of the research produced by a project funded by the Australian Research Council entitled ‘The Media and ASEAN Transitions: Defamation Law, Journalism and Public Debate in Indonesia,


Malaysia and Singapore’ (DP0662844). The author acknowledges the contribution of the co-Chief Investigators of this Project, Professor Andrew Kenyon, Professor Tim Lindsey, Dr Tim Marjoribanks and Dr Amanda Whiting in preparing the article, as well as the translation assistance of Faye Chan.

1 Article 27(1) of the Indonesian Constitution reads: ‘All citizens have equal status before the law and its government and shall abide by the law and the government without any exception’.

2 Article 28F of the Indonesian Constitution reads: ‘Each person has the right to communicate and to obtain information in order to develop themselves and their social environment, and the right to seek out, obtain, possess, store, process, and transmit using any means available’.

3 Article 28E(2)-(3) of the Indonesian Constitution reads as follows: (2) Each person has the freedom to possess convictions and beliefs, and to express their thoughts and attitudes in accordance with their conscience. (3) Each person has the freedom to associate, gather, and express their opinions.

4 Article 28 of the Indonesian Constitution reads: ‘Freedom of association and assembly, of verbal and written expression and the like, shall be regulated by law’.

5 For example, Manzella, 2000: 313 and Romano, 2003: 54–61 outline certain values and beliefs held by the Indonesian media that are strikingly similar to that held by the ‘Western’ and ‘free’ media, including belief in the press’s role as society’s watchdog, and a recognition that the press is an instrument of democracy. As a result of these values and beliefs, although the New Order government applied and supported the develop-mental journalism paradigm, the media – seeing itself as ‘free’ and independent – continually tried to circumvent government controls through ‘between the lines’ journalism (as described by Manzella) for example. The government was not completely impervious to these tactics, and a tension existed between it and the media. This is demonstrated, for example, by its multiple attacks on TEMPO magazine. Nevertheless, it is recognised that the Indonesian print media has continually attempted to use inventive measures to avoid state control.

6 ‘Development journalism’ is a form of journalism advanced in response to the dominant capitalistic Western ‘free media’ form of journalism. It aims to advance positive news regarding developing states rather than focusing on negative or sensationalist news stories that could disrupt the social order of such states. It requires the media to have ‘a strong sense of responsibility for the consequences of news reports’: Romano, 2003: 41. While the aims of the four branches of development journalism as outlined in critiques by Romano, 2003: 40–3 are not inherently flawed, and while such models of journalism can be useful, the state’s particular articulation of development journalism in Indonesia (and in other parts of South-East Asia) has often thwarted these aims.

7 There are many reasons for this, not least being the ownership structures of most print publications in those countries, as well as the continued existence of onerous printing regulations in both Malaysia and Singapore. However, although this form of journalism remains dominant in those countries, the emergence of independent and online media appears to be gradually transforming media markets in both countries (particularly in Malaysia) by creating greater space for public debate: see George, 2006; Kenyon and Marjoribanks, 2007; Lee, 2005; Heng, 2002.

8 Prominent laws and regulations to that effect include the Basic Press Law of 1966, Law No 21 of 1982, and Minister for Information Regulation No 1 of 1984 (also known as the 1984 Ministerial Decree).

9 Kitley, 2001: 261, however, argues that instead of development journalism, it was ‘the assumption that … the media is powerful in producing effects, and that the media function therefore needs control and responsibility in its use’ that influenced the Indo-nesian media. President Soeharto later framed some of the ideals of development journalism in state terminology, calling it the ‘Pancasila media project’. According to Kitley, 2001: 260, the Pancasila media project entailed an ideological shift in the state’s view of the media’s function in Indonesian society. Pancasila – the ‘five pillars’ – is the


philosophical underpinning of the Indonesian state. It was introduced by Soekarno during the formation of the independent Indonesia: Taylor, 2003: 388.

10 For further discussion of the TEMPO case, see Millie, 1999: 273–5 and Bedner, 2001: 179–82. Note, though, that TEMPO was able to resume publication following the post-Soeharto removal of licence restrictions on the print media and, in the interim, it commenced online operations, launching Tempointeraktif.com in 1996.

11 Indeed, during his term as President, Habibie did not interfere with the media, even when unfavourable reports about him were published: Hosen, 2002: 47.

12 The Press Law also guaranteed press freedom, created a new Press Council, formulated a Journalistic Code of Ethics, and created a form of dispute resolution to resolve complaints against the media.

13 This process, known as delik aduan, exists because some criminal provisions are complaint-driven: a common feature of civil law criminal systems. A benefit – for the complainant – of using this process is that the complainant does not need to fund investigations into the alleged wrong, or to establish the guilt of the accused. Instead, the complainant may either launch a civil claim for damages caused by the defamation at the same time the criminal trial is run, or file for damages following a finding of criminal guilt.

14 Consider, for example, the prosecution of Bambang Harymurti, chief editor of TEMPO. In March 2003, TEMPO published an article implicating prominent businessman Tomy Winata in a fire that destroyed a textile market in Jakarta. Following complaints to the police by Winata, Harymurti was consequently charged with and tried for criminal defamation (in addition, Winata simultaneously launched a civil claim for damages). In September 2004, Harymurti was convicted of the crime by the Central Jakarta District Court. The Jakarta High Court upheld this ruling in April 2005. Eventually, the Supreme Court acquitted Harymurti in February 2006. Throughout the duration of his legal battle, the domestic and international media rallied around Harymurti and criti-cised the government for using criminal laws to sanction the media: see Simanjuntak, 2003; Walters, 2004: 11; Wolfowitz, 2004; Jakarta Post, 2004b; Nakashima, 2006: 15; International Federation of Journalists, 2006.

15 For example, Decision No 012-022/PUU-IV/2006 and Decision No 6/PUU-V/2007, both discussed in this article. However, the success of such challenges is not guaranteed; for example, in 2008 the Constitutional Court upheld the constitutionality of arts 207, 310, 311 and 316 of the Criminal Code: Decision No 14/PUU-VI/2008.

16 An example is TEMPO’s recent coverage of state bank loans awarded to the well-connected Bakrie group for a toll-road project: see Susanto et al, 2007.

17 A recent example of this was when former legislator Yahya Zaini of the Golkar Party was forced to resign from the party and his parliamentary seat after a clip of his frolicking naked with Indonesian singer Maria Eva was broadcast widely by the media on television and the Internet.

18 Consider, for example, an edition of TEMPO that included discussion on race relations between non-ethnic-Chinese Indonesians and ethnic Chinese Indonesians: TEMPO, 2004. TEMPO’s reporting of this politically sensitive issue is in contrast with that of magazines and newspapers in Malaysia and Singapore, where discussion of race relations remains taboo.

19 Hamburger, 1985: 665, argues that in England charges of seditious libel became more common when other means of state control of the media were relaxed or removed (for example, licensing laws). It is possible that a detailed examination of Indonesia’s sedition prosecutions would reveal a parallel situation.

20 ‘A deliberate insult to the President or the Vice-President will be subject to a maximum prison sentence of six years, or a maximum fine of four thousand five hundred thousand rupiah’. (Translation by Faye Chan, 2007)

21 ‘The Interpretation of insults as referred to in article 134 also includes the description of the deed in article 135, if it was committed outside the presence of the insulted party, both with behaviour in public and not in public, both orally and in writing, provided that it was in front of more than four people, or in front of a third party, against


his/her/their will and because of it he/she/they felt offended’. (Translation by Faye Chan, 2007)

22 ‘(1) Whosoever broadcasts, exhibits, or puts up in public, writings or drawings which contain insults to the President or Vice-President, with the intention that the contents of the insults become known or widely known by the public, will be subject to a maximum prison sentence of one year and four months or a maximum fine of four thousand five hundred rupiah.

(2) If the guilty party committed the crime while exercising his/her occupation, and at that moment two years had not yet passed since an existing conviction became permanent due to a similar crime, then he/she can be prohibited from exercising the aforesaid profession.’ (Translation by Faye Chan, 2007)

23 Whosoever expresses feelings of hostility, hatred or contempt in public towards the Indonesian Government, will be subject to a maximum prison sentence of seven years or a maximum fine of four thousand five hundred rupiah’. (Translation by Faye Chan, 2007)

24 ‘(1) Whosoever broadcasts, exhibits or puts up writings or drawings in public which contain expressions of feelings of hostility, hatred or contempt towards the Indonesian Government, with the intention that the contents become known or widely known by the public, will be subject to a maximum prison sentence of four years and six months or a maximum fine of four thousand five hundred rupiah.

(2) If the guilty party committed the aforesaid crime while exercising his/her occupation, and at that moment five years had not yet passed since his/her conviction became permanent due to the commission of a similar crime, then party involved can be prohibited from exercising the aforesaid profession.’ (Translation by Faye Chan, 2007)

25 Examples include the convictions of Supratman, Muzakkir, Nanang Mamija, Ignatius Mahendra Kusuma Wardana, Yoyok Eko Widodok, and Kias Tomo: Amnesty Inter-national, 2003: 9–10; Human Rights Watch, 2003: 5–6. See also Hosen, 2002: 47. Given that, during Indonesia’s revolutionary period, Megawati’s father Soekarno was detained and convicted by Dutch colonialists for contravening sedition provisions, the return to use of these laws by Megawati is somewhat ironic.

26 Examples include the convictions of Eggi Sudjana, Fakhrur Rohman, and I Wayan Suardana: see Suryodiningrat, 2005; Reuters News, 2006b; and Boediwardhana, 2005.

27 Including the charges and/or convictions of Muhammad Nazar, Obed Komba, Yudas Meage, Yafet Yelemaken, Murjono Murib, Amelia Yigibalom in 2000: Amnesty Inter-national, 2001; Human Rights Watch, 2003: 17–18.

28 Including against Faisal Saifuddin in 2002: Human Rights Watch, 2003: 15–17. 29 Including against Panji Utomo in 2006. 30 For example, as discussed previously, many of the libel provisions articulated in the

Criminal Code, although investigated by the police and prosecuted by the state, are complaint-driven, leaving open the possibility of some complaints being taken more seriously than others.

31 Discussed, for example, in Transparency International, 2007; International Commission of Jurists, 2002: 192; Cumaraswamy, 2002: [27]-[37].

32 For example, part of political activist Kias Tomo’s argument in defence of the charge against him of insulting President Megawati was that the actual substance of the criminal act outlined by the provisions was unclear, enabling the possibility of ‘the authorities, represented in this matter by the police and the prosecutors, to carry out an authoritarian interpretation against the actions of an individual; whether it is an action, a word, or even a thought, which is different from the official opinion of the authorities’: see Human Rights Watch, 2003: 5. This argument necessarily extends beyond individuals to the media.

33 Cherian George (2006: 46–7) clearly expounds this point on self-censorship: [T]he generally calm relationship between press and state raises the question of whether it is actually ideological and material comfort with the status quo, rather than fear that keeps journalists in line. On the other hand, one does not need to be


burnt more than once to realise that one should not play with fire. The senior-most gatekeepers within media organizations measure their experience in decades; they have witnessed and learnt from the uglier episodes of government repression. As neither state has repealed any of its security or press laws, it is not unreasonable for editors to assume that officials can, at any time, dust off a rarely used instrument to deal decisively with media that go out of line.

While that passage refers to the situation in Malaysia and Singapore, some aspects apply equally to Indonesia. Although Indonesian journalists demonstrated remarkable innovations in evading media repression, through enforcement of those repressive laws the New Order government created a climate where some level of self-censorship was necessary (similar to the ‘chilling effect’ that defamation laws are said to have on the media), and this form of self-censorship is difficult to un-learn.

34 Rakyat Merdeka, 2003a. At the time, there was considerable public disquiet over Megawati allegedly receiving financial gains from petroleum sales.

35 Rakyat Merdeka, 2003c. Sumanto is an infamous Javanese cannibal. 36 Rakyat Merdeka, 2003d. A regent, or bupati, refers to a sub-provincial administrator,

who is obviously much lower in the hierarchy of rulers than the President. 37 Conversation with Supratman (Jakarta, 4 June 2007). 38 Conversation with Supratman (Jakarta, 4 June 2007). 39 Subordinate regulations below the level of statute could be reviewed by the Supreme

Court, but this power was rarely exercised. 40 For further information on or discussion of the Constitutional Court’s operation, see

Kaligis, 2005; Harijanti and Lindsey, 2005; Butt and Hansell, 2004; Clarke, 2003; Law No 24 of 2003 on the Constitutional Court; and Constitutional Court Regulation No 06/PMK/2005 on the Procedures of Judicial Review of Law. See also Venning, 2008; Butt and Lindsey, 2008.

41 This law has since been revised by Law 5/2004 and Law 3/2009. 42 Article 24C(1) of the Constitution reads: ‘The Constitutional Court has the authority to

hear matters at the lowest and highest levels and to make final decisions in the review of legislation against the Constitution, …’.

43 Indonesian Constitutional Court, Decision No 013/PUU-1/2003. The complete decision, in Indonesian, can be located at the Constitutional Court’s website at <http://www. mahkamahkonstitusi.go.id>.

44 Indonesian Constitutional Court, Decision No 003/PUU-IV/2006. The complete decision, in Indonesian, can be located at the Constitutional Court’s website at <http://www. mahkamahkonstitusi.go.id>.

45 ‘(1) Each person is obliged to respect the basic human rights of others in orderly life as a community, as a people, and as a nation. (2) In the enjoyment of their rights and freedoms, each person is obliged to submit to the limits determined by the law, with the sole purpose of guaranteeing recognition and respect for the rights of others and to fulfil the requirements of justice and taking into consideration morality, religious values, security, and public order in a democratic com-munity.’

46 Evidence tendered at his trial suggested that this apology had been accepted by the President.

47 The majority consisted of Jimly Asshiddiqie (President and Chief Justice of the Court), HM Laica Marzuki, Maruarar Siahaan, Abdul Mukhtie Fadjar and Harjono, while the dissenting minority consisted of HAS Natabaya, H Achmad Roestandi, I Dewa Gede Palguna and Soedarsono.

48 ‘Whosoever publicly insults a ruler or public body, will be subject to a maximum prison sentence of one year and six months or a maximum fine of four thousand five hundred rupiah’: Translation by Faye Chan, 2007.

49 ‘(1) Whosoever broadcasts, exhibits or puts up writings or drawings in public, the con-tents of which contain insults towards ruler(s) or any public body (bodies) in Indonesia,


with the intention that the contents become known or widely known by the public, will be subject to a maximum prison sentence of four months or a maximum fine of four thousand five hundred rupiah. (2) If the guilty party committed the aforesaid crime while exercising his/her occupation, and at that moment five years had not passed since his/her conviction became permanent, the guilty party can be prohibited from exercising the aforesaid profession.’ (Translation by Faye Chan, 2007)

50 The most plausible interpretation of this inconsistency is a reluctance on the part of the Constitutional Court to contravene the doctrine of the separation of powers by com-menting on legislative provisions that were not the subject of review.

51 ‘(1) Each person has the right to develop themselves through the fulfilment of their basic needs, the right to education and to obtain benefit from science and technology, art and culture, in order to improve the quality of their life and the welfare of the human race. (2) Each person has the right to advance themselves in struggling to obtain their collective rights to develop their community, their people, and their nation.’

52 ‘(1) Each person has the right to the recognition, the security, the protection and the certainty of just laws and equal treatment before the law’.

53 The full constitutional court consisted of Jimly Asshiddiqie (President of the Court), Harjono, I Dewa Gede Palguna, HAS Natabaya, HM Laica Marzuki, Soedarsono, H Abdul Mukhtie Fadjar, H Achmad Roestandi, and Maruarar Siahaan.

54 Indeed, it is an accepted practice in many countries employing the traditional European/Austrian model of constitutional review (otherwise known as the ‘concen-trated model’), including Algeria, Brazil, Colombia, Ecuador, Egypt, Guatemala, and Peru: Harutyunyan and Mavcic, 1999: Chapter 1 Part B.

55 For example, in 2005, the Supreme Court of Florida ruled that a decision of the United States Supreme Court (Apprendi v New Jersey, 530 US 466 (2000)) did not apply to defendants whose convictions were final at the time Apprendi was decided: see James Michael Hughes v Florida, No SC02-2247, Supreme Court of Florida, at 19, 23 (Cantero, Wells, Quince and Bell JJ).

56 Note, however, that in Indonesia itself some argue that in circumstances where a case is ongoing or a trial has not commenced, prosecutors ought to dismiss or amend charges against persons who have been charged with the invalid provisions: see, for example, the view of Eggi’s lawyer Firman Wijaya, in Manan and Pratama, 2006; and the comments of Chief Justice Bagir Manan of the Supreme Court in Boediwardhana and Siboro, 2004.

57 Justice Koesriyanto stated that ‘[t]he act of insulting the President was committed by the accused in a time and space prior to the decision of the Constitutional Court. As such, the decision of the Constitutional Court cannot abolish the claims of the Public Prosecutor nor remove the crime. As such, the accused can still be charged using article 134 and the second section under article 136’: Antara News Agency, 2007.

58 Besides the Central Jakarta District Court’s decision in Eggi’s case, another situation in which the prospective application of judicial review came into question was following the decision of the Constitutional Court in Masykur Abdul Kadir. In this decision, Law No 16 of 2003 (enacted after the Bali bombings to allow retrospective application of a newly enacted anti-terrorism law) was held to be unconstitutional by reason of its retrospectivity: Indonesian Constitutional Court, Decision No 013/PUU-1/2003. More than two years later, it appears that no one convicted of breaching Law No 16 of 2003 before the Constitutional Court’s decision has had their conviction overturned, even though at least three persons previously convicted under the law and currently exe-cuted – Imam Samudra, Amrozi bin Nurhasyim and Ali Gufron alias Mukhlas – applied for a review of their convictions on that basis: Sydney Morning Herald, 2008; Lindsey, 2007: 14; Hermawan, 2006. The Constitutional Court’s decision in the case was, however, followed by prosecutors, who subsequent to the ruling charged Abu Bakar Ba’asyir for his alleged involvement in those bombings pursuant to offences under the Criminal Code, rather than under Law No 16 of 2003. This is notwithstanding that the


police had originally detained Ba’asyir pursuant to Law No 16 of 2003. It is also, of course, contrary to the Central Jakarta District Court’s decision in Eggi’s sedition trial. According to the Court’s reasoning in that case, Ba’asyir could still have been charged pursuant to the Law as it had not been abolished before his alleged offence. Clearly, there remains significant uncertainty in Indonesia as to how the principles enunciated by the Constitutional Court should be applied in practice.

59 For example, a range of criminal libel laws with sanctions of varying degrees (see arts 310–321 of the Criminal Code).

60 Note, for example, that in July 2007 mainstream media outlets were issued with a government directive to refrain from reporting news on the question of whether Malaysia is an Islamic or secular state: see Ng and Soon, 2007.

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1984 on Press Publication Permits

Documents

Increasing Press Freedom in Indonesia