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8/4/2019 Maintaining Freedom Expression of the Press in a Sensitive Religious Society
1/19
1
Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
MAINTAINING FREEDOM EXPRESSION OF THE PRESS IN A SENSITIVE
RELIGIOUS SOCIETY
by
Aulia Rahmawati
On Democratic government system, supreme sovereign in the hands of people, so
the state must guarantee the rights of the community. Freely fundamental right
that must fulfilled by the state is the right to express opinions (freedom of
expression), the right to assembly and association (freedom of assembly), and the
right to enjoy a free press (freedom of the press). The right to express opinions
and the right to enjoy a free press is placed in a "single package", called freedom
of expression. Indonesia is a pluralistic country, in terms of religion, creed,
ethnicity, and race. The high diversity in Indonesia turned out to be one of the
triggers of conflict between groups, especially related with issues of freedom of
expression and the press that intersect with religious and beliefs embraced by the
community.
I. IntroductionDemocracy is a form or mechanism system of government of a state as the efforts to
realize the sovereignty of the people (the will of the people) of the country to be conduct by
the government of that country.1
According to Andiwidjajanto et al, in his bookTransnasionalisasi Masyarakat Sipil,
stated that being a democratic country requires the country concerned through a stage called
transition to democracy. This stage will be experienced by a country ruled by an authoritarian
regime, as a form to achieve a more democratic conditions. For more than 30 years Indonesia
was ruled by the authoritarian Soeharto regime, known as the "New Order". A wave of
protests by the people of the Soeharto regime started to occur when Indonesia was hit by a
regional economic crisis that occurred in the decade of the 90s. A wave of protest is able to
overthrow the authoritarian regime of Soeharto in May 1998. Since then, Indonesia has
entered a phase transition accompanied by the decentralization process that emphasizes theautonomy of the people and more implementation of transparent governance.
The period of democratic transition marked by the increasing number of discourse
about strengthening of civil society, freedom of expression and opinion increasingly have
their own place due to the rejection of dominant and centralized model of government that
replaced with a model of democratic government. The spirit of change, reform of government
and social order is part of the stage of democratic transition.
1Jimly Asshiddiqie. Hukum Tata Negara dan Pilar-Pilar Demokrasi, Serpihan Pemikrian Hukum, Media dan
HAM. Jakarta: Constitutional Press. Page.335
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
Generally, democracy as a basis for national life gives the sense that there is a chance
for people to participate actively in the formulation of government policy. Active
involvement of the people is necessary in order to fulfill the fundamental rights of citizens.
Guarantee of fundamental rights of citizens is the main parameter of the realization of a
democratic state. A democratic state must guarantee fundamental rights freely, including the
right to express opinions (freedom of expression), the right to assembly and association
(freedom of assembly), and the right to enjoy a free press (freedom of the press)2
In a democratic society there is freedoms of citizens to participate actively as
regulated in legislation.3
So that people can participate in influencing policy-making process
established by the government, hence the need for tools or media that will be used in such
participation.
The role of media is very important in the process of establishing a democratic
culture, where a transparent government became one of the parameters to achieve full
democracy. The role of media becomes very important to remember history before 1998, that
the government did not always tell the truth the truth in public. Merphin Panjaitan, in his
book entitled Gerakan Warga Negara Menuju Demokrasi, development of democratic
culture among others through the understanding, deepening and experience of basic values
and principles of democracy in civic life and the state: freedom, independence and also
determine, openness, tolerance and discussion, rational, diversity and peace, freedom of
thought and religion, freedom of assembly, association and expression, equality, fraternity.4
However, the process of establishing a democratic culture is not as easy as turning the
palm of hand. There are basic values and principles of democracy which are not yet fully
understood by the society, which are: openness, tolerance and discussion, diversity and peace,
and freedom of thought and religion.
The above assessment is based on the survey result of LSI (Lembaga Survey
Indonesia/ Indonesian Survey Institute), which indicates that the number of religious
intolerance in Indonesian society has increased. In this survey, LSI takes two current issues:
violence against Ahmadiyya followers and the establishment of houses of worship. Related to
the Ahmadiyya, the survey results show a justification for the violence on the Ahmadis
higher. If in 2005, the number of people who agree with acts of violence on the Ahmadiyya
only 13.9%, by 2010 this figure rose to 30.2%. The number of residents who agree if the
2
Mahfud MD. (1999).Hukum dan Pilar-Pilar Demokrasi. Yogyakarta: Gama Media. Page 1843Look the Article 28J Paragraph (2) of the Indonesian Constitution 1945
4 Merphin Panjaitan. (2001). Gerakan Warga Negara Menuju Demokrasi. Jakarta: Restu Agung, Page 21-50
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
government banned Ahmadiyya teachings in Indonesia was also higher. In 2005, the number
of those who agree if the government banned Ahmadiyya only 35.2%. Currently in the year
2010 the number rose to 53.4%.5
These data show decreasing respect for people who have
different beliefs.
Then, based on Monthly Reports on Religious Issues Wahid Institute, edition of the
13th
August 2008, also found several cases of mass anarchy when linked with issues of
"religion". Some of them are Book Sues Wrong, Mass (NU Islamic organizations, Ansor,
Banser, FPI.red) Acting Anarchist in Tasikmalaya in West Java on charges of religious
blasphemy; Purwakartas Regent Accused of Defamated the Religion in Purwakarta-West
Java, charges of religious defamation; and there were 20 cases Incidents of Violations and
Discriminations Against Indonesia Ahmadiyah Congregation after Three Join Decree of the
Ministers on June 9, 2008.
Director of the International Crisis Group Indonesia, Sidney Jones based on the
results of his research reveals there are a number of factors that trigger such intolerance,
among other things, the expansion of religious teaching in areas that are not proper,
democratic culture of freedom of expression associated with each race, the lack of control of
national governments and police in the region.6
The essence of religious freedom as a human
rights theoretically can not be separated from freedom of expression. While freedom of
expression is very tight and impossible to separate from freedom of thought and freedom of
belief.
Problems of religious freedom have been considered as a matter of "sensitive".
Therefore, although there is occur a problem, an open discussion is seldom to conduct in this
issue. Discussion on the issue of religious freedom is fear to violate religious harmony and
violate Tribe, Religion, Race and Inter-Group. This is where the media's role as distributor
of information plays an important role in introducing, uphold and preserve the culture of
democracy that has not been comprehensively understood by the people of Indonesia.
Based on the above background there are two issues which are: First, how is the role
of the media (the press) in fulfillment of the right to freedom of expression as an effort to
create a democratic state?. Second, what kind of legal products that can accommodate the role
5For more details read on Meningkatkan Intoleransi Beragama Masyarakat Indonesia (Religious Intolerance
Improve Society of Indonesia), in LSI Monthly Review, Issue No.23, October 2010, or can be accessed at the
official website of LSI, www.lsi.co.id6
Toleransi Umat Beragama Turun (People of Religious Tolerance Down), by Icha Rastika (17/01/2011),accessed from sites http://nasional.kompas.com/read/2011/01/17/22255757/Toleransi.Umat.Beragama.Turun
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
of the media (the press) in fulfillment the rights of freedom expression of the press in
Indonesia pluralistic society?
II.Analysis1. The role of the media (the press) in fulfillment of the right to freedom of expression
as an effort to create a democratic state.
Why the press? Both the freedom of the press or freedom of speech and freedom of
opinion or expressing our opinion under the "shade" or the "single package" called "freedom
of expression". Loads of freedom of expression is very broad, ranging from freedom tapped
the table to draw the attention of the participants deliberation by leaders of deliberation,
whistling, singing, painting, sculpture, speak, speech, publishing a statement and write letters
to the press media. The work of journalism, published in the print press media7, electronic
media auditif8, audiovisual and electronic media
9, and online media, is part of freedom of the
press, which as a whole may be called freedom of expression.
In the preamble to weigh letters a and b of Law No. 40 of 1999 on the Press, namely:
a. that press freedom is one form of people sovereignty and become a very importantelement to creating the life of society, a democratic nation and state, so the issue of
independence of thought and opinion as stated in Article 28 of Act of 1945 must be
guaranteed;
b. that in the life of society, nation, and state that is democratic, freedom of thoughts andopinions expressed in accordance with the conscience and the right to obtaininformation, a human right that is essential, necessary to uphold justice and truth,
promote the general welfare, and intellectual life of the nation;
For the realization of democracy itself, there should be a support system for its
optimal implementation. There should be a democratic system based on a rational culture,
honest, open, accountable and ensure egalitarianism. The role of mass media, both print and
electronic, has an important role to promote democratic culture in society.
In the Article 3, paragraph (1) of the Law No.40 of 1999 on the Press and Haris
Sumadiria in his book entitled Jurnalistik Indonesia, explains the five main functions of the
press: (1) Information, to inform, (2) Education: to educate, (3) Correction: to influence, (4)
Recreation: to entertain, (5) Mediation; to mediate. From the definition and the main
functions of the press above, can be interpreted that the press will also have a social function
7
Newspaper, Magazine8Radio
9 Television, Internet
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
that is to sharpen the sense of society by providing critical information (right to know) as
material for expressing audiences opinion (right to expression).
The press has a strategic function and the extraordinary power to shape public opinion
on a matter. Historically, through the language he used, the media has tremendous power in
creating a tolerant and peaceful society, or, conversely, to incite people to conflict, war with
each other. By considering "the power of mass media", it should be in a very pluralistic
country (religion, belief, race or ethnicity, culture) is put hope on the strategic role of the
media to promote the climate of tolerance and peace, by presenting the media fact of
pluralism perspective10
, voicing the Human Rights, the rights of minority groups, and
alignments on the oppressed, regardless of religious background, beliefs, ethnicity, and
sexual orientation11
. This is similar to the function of the press in Article 3 paragraph (1) of
the Law No.40 of 1999 on the Press, as an information media, the press is expected to uphold
and fight for one of the pillars of the press, namely Idealism, as upholding the values of
democracy, human rights, fight for justice and truth. Therefore, by many, especially human
rights activists, the media staying expected to be one row to campaign of the pluralism idea
for creating a peaceful life that appreciates any differences.
Freedom of the press is an important element in the formation of a democratic state
system, open and transparent. The press as an information media is the fourth pillar of
democracy walking along with law enforcement to create a balance in a country. The press as
a correction media should be guaranteed plurality and pluralism in Indonesia. Guaranteed
freedom of the press in performing its duties is considered important to maintain objectivity
and transparency in the press, so the news can be expressed in truth without any fear or under
threat of the ruler. The values of freedom of the press have been accommodated in the Article
28, 28E paragraph (2) and (3), 28F of the 1945 Constitution, and the Law No.40 of 1999 on
the Press. Therefore, the state has clearly recognized that freedom of expression and freedom
of thought are a part of the realization of a democratic country and based on law.
10Guarantee the absence of truth coercion by one group against another group.
11 Gay, Lesbian
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
2. Arrangement and Harmonization the Freedom Expression of the Press in IndonesiaPluralistic Society
Freedom of the press in the high diversity of expression is the most vulnerable factor
in triggering religious conflict. In performing its function as a media channel information, the
press can be used as a tool to create a society that is conscious of pluralism, where pluralism
is a commitment, because the reality of plural society12
, it is necessary to respect the plural
of, pluralism, and difference. Pluralism does not talk about truth, but the pluralism is the
attitude of openness.13
However, the press, if not strictly controlled, careful and precise tool
can be most easily trigger conflicts, given "the power of mass media" that belongs to the
press can easily form an opinion in the community.
Table 1
Religions and Local Beliefs in Indonesia
Religions/ Beliefs Explanation Status
Official Religions Islam, Christianity, Catholicism,
Hinduism, Buddhism, and
Confucianism (Confucius)
* Explanation of Law No.1 of 1965 on
the Prevention of Abuse and / or
Religious Blasphemy, Article 1:
With the words "General Expenses" is
meant what is commonly meant by the
words in the Book of Criminal Justice
Act. Religions embraced by the
population in Indonesia is Islam,
Christianity, Catholicism, Hinduism,
Buddhism and Confucianism(Confucius).
Local Belifes Kaharingan (Dayak / Kalimantan);
Sunda wiwitan (Baduy Banten);
Sipelebegu-Parmalim (Batak / North
Sumatra); Saminisme (Blora / Central
Java); Towani Tolotang (Sidrap);Patuntung (Kajang, Bulukamba, South
Sulawesi); Cigugur (from Kuningan,
West Java); Wetu Telu (from
Lombok); Naurus (home island of
Seram, Maluku); Buhun (West Java);
Kejawen (Central Java and East Java)14
* Article 28E Paragraph (2)
Constitution Indonesian Republic State
of 1945:
'Everyone has the right to freedom of
belief to believe, express thoughts andattitudes, according to his conscience'.
* Article 29 paragraph (2) Constitution
Indonesian Republic State of 1945:
'State guarantees freedom of each
citizen to embrace their religious
teachings and to worship according to
his religion or belief'
12Plural, Compound: Lots of Interest, Flow Belief, Race, Religion
13 Franz Magnis Suseno said that pluralism: the implications of a tolerant attitude: a willingness to accept very
well the reality of plurality of religions, that is the fact that in a society and country life of people and groups of
people with different religious beliefs. Pluralism was not demanding that all were considered true-belief.
Pluralism does not talk about truth. Rather, pluralism is the attitude of openness.14
Look at, Ibn Qoyim.Local Religion and Views of Life: Religion Kaharingan The Dayaks in Borneo and the
Sunda wiwitan Religion Bedouin Community in Banten. PMB-LIPI, 2003; Ibn Qoyim. Local Religion and Views
of Life: A Study of Society and the adherents of Religion Tolotang Patuntung, Sipelebegu (Permalim),
Saminisme Sundanese and Javanese Religion, PMB-LIPI, 2004, quoted in the paper and view ResearchingLocal Religious Life by Abdul Rachman Patji, accessed from sites
elib.pdii.lipi.go.id/katalog/index.php/searchkatalog/.../6351/6352.pdfon May 26, 2011
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
In the juridical right to express opinions is fully guaranteed by the state, both in the
instruments of national legislation and international instruments ratified. Here are some rules
related to freedom of expression:
Article 28E Paragraph (3) UUD NRI 1945:
Everyone has the right to freedom of association, assembly, opinion and expression
Article 19 UDHR (Universal Declaration of Human Rights), guarantees the right to express
opinions:
Everyone has the right to freedom of opinion and expression; this right includes the
right to hold opinions without interference and to seek, receive and impart informa-
tion and ideas through any media and regardless of frontiers .15
Article 19 paragraph (2) of Law no. 12 of 2005 on Ratification Ratification of International
Covenant on Civil and Political Rights (ICCPR):
Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
Although the three rules mentioned above, not on press freedom explicitly, all three
have shown a warranty and express recognition of the independence of thought and opinion,
freedom of expression and press freedom. And as mentioned earlier, freedom of expression
and freedom of the press are in a "single package".
This is in accordance with the letter a consideration in Law No.40 of 1999 on the
Press which stated that freedom of the press is one manifestation of people sovereignty which
is based on the principles of democracy and embodies the fulfillment of human rights as
contained in the Article 28E Constitution Indonesian Republic State of 1945.
In the midst of passion to realize the freedom of the press as an effort to complete the
transition towards fully democracy, the Indonesian press still has many problems, especially
when associated with with religious life in a pluralistic Indonesia. Freedom of expression of
the press often clashed with the offense of religious defamation or religios blasphemy16
.
15 Article 19, UDHR, adopted by the UN General Assembly on 10 December 1948, Resolution 217A(III).16On the one hand freedom of expression by the press as a medium ensures a more transparent government
(public disclosure), correction tool of government policy. While on the other side of freedom of expressionthrough the mass media sometimes actually have a negative impact if happens lack of strong control agencies,
that threaten freedom itself.
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
Table 2
Blasphemy/Defamation Case by the Press
Source: Adapted from various news sources, print and online.
In this regard, there are some important notes that need to be given. First, the cases of
desecration of religion is always associated with religion what/who is be spotted. Who has
the right to say a particular religion has been spotted or not. This is very fundamental in this
problem. Formal judicial, of course, ultimately the decision maker is the judge. Especially in
religious matters, the judges often felt he had no "authority" in attitude and make the
interpretation. Second, because of the problems mentioned above, then the mainstream voice
of truth is often taken as a reference. In 2010, approximately 85.1% of Indonesia's population
is 240 271 522 Muslims, 9.2% Protestant, 3.5% Catholic, 1.8% were Hindu, and 0.4%
Buddhist.19
Third, therefore, religious desecration case in court always involve the masses.
Mass mobilization carried out not only to voice their aspirations, but to give the impression
that what is voiced by the majority opinion. This pressure is in turn expected to influence the
judge's decision. Finally, claims of religious desecration is not a problem of the nature of
17 When Jibril Stop by at the National Monument, HB Jassin Sign in Prison ( tempointeraktif.com/April 26,
2006)18
PETA Tabloid again publish caricatures of Prophet Muhammad SAW who previously have first published by
Danish newspaper Jyllands-Posten, 30 September 2005 editions ago, in the newspaper on display 12 cartoons of
Prophet Muhammad.19Indonesia: The World Factbook. CIA. March 19, 2009.https://www.cia.gov/library/publications/the-world-
factbook/geos/id.html
No Explanations Charge Years
1 HB Jassin (Magazine Editor):
Case short story "The Sky Clouds" by Ki Pandji Kusmin, which
was published in Literary Magazine, edition August 8, 1968.
Article 156a of the Criminal
Code,
Religious Defamation
1968
200617
2 Arswendo Atmowiloto (Chief Editor):
Results questionnaire Monitor magazine edition October 15,
1990, regarding the most admired figures reader. Polls showed
the Prophet Muhammad was ranked 11th.
Articles 156 and 156a of the
Criminal Code letters a,
Spreader Hatred/Religious
Insult and Blasphemy
1990
3 Teguh Santosa (Chief Editor of Rakyat Merdeka Online site):
The media showed images of the Prophet Muhammad
caricatures in the media pages Rakyat Merdeka Online on
February 2, 2006
Article 156a of the Criminal
Code,
Religious Defamation
2006
4 Imam Trikarsohadi (General Leader) and H. Abdul Wahab
(Chief Editor):
Loading of caricatures of Prophet Muhammad SAW in PETATabloid edition 53, dated February 6 to 12, 2006.18
Article 156a of the Criminal
Code,
Religious Defamation
2006
5 TEMPO Weekly magazine, edition of 4 to 10 February 2008.
In this edition, the magazine covers featuring former PresidentSuharto with her children in a similar composition of the
painting "The Last Super" Leonardo da Vinci's masterpiece
depicting Jesus Christ's holy communion with his students.
Article 156 of the Criminal
Code, Religious Blasphemy
2008
https://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.html8/4/2019 Maintaining Freedom Expression of the Press in a Sensitive Religious Society
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
truth itself, but more because of mass pressure, the majority-minority problem, which is
wrapped with the authority of religious interpretation.20
3. Religious Blasphemy and/or Religious DefamationArticle 156 of the Criminal Code reads,
Anyone who publicly expressed feelings of enmity, hatred, or contempt against one or
several classes of the people of Indonesia, punishable by a maximum imprisonment of
four years or a maximum fine of four thousand five hundred dollars. Word classes in
this chapter and the next chapter means every part of the Indonesian people who are
different from one or several other parts because of race, country of origin, religion,
place of origin, ancestry, nationality or domicile according to constitutional law.
Article 156a of the Criminal Code reads,
"Sentenced to imprisonment for a maximum of five years whoever intentionallypublicly issued feelings or acts: a. the main character of hostility, abuse or desecration
of a religion followed in Indonesia; with the intention that that person did not adopt
any religion as well, which is based on belief in one supreme God."
The seeds of religious desecration offense can also be seen in the Article 1 of Law
No. 1/PNPS/1965 explicitly states seek ban on public support and to make interpretations
about something religious. The provisions of this article further reads: " Every person is
prohibited in public deliberately tell, encourage or seek public support for an interpretation of
something that the main religion in Indonesia or to conduct religious activities that resemble
that of religious activities, interpretations and activities which deviate from the principal
teachings of that religion. "
Desecration of religion is considered as crucial and need to regulated in Criminal
Code and the laws because the first precepts of Pancasila and Article 29 Constitution
Indonesian Republic State of 1945 "Belief in God Almighty" as a central point of the life of
the state, then the offense Godslastering as blasphemy be a priority in religious offense.21
Settings on the "Blasphemy Religion", in the Criminal Code and Law No.1/PNPS/1965 lead
to the criminalization process. When they should be protected through criminal law is
freedom of religion. If this protection happen, according to international human rights law is
20Read Hilangnya Ayat-Ayat Konstitusi di Antara Ketakutan dan Konservatisme, by M. Choirul Anam-
Imparsial in Monitor Magazine, edition January-April 2010, page 7 or can be accessed at the official site
Imparsial, http://imparsial.org
21For more details, read. Prof H. Oemar Seno Adji,Hukum (Acara) Pidana dalam Prospeksi, page 92 and 100-
102.
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
respecting people's rights to practice the religion of their choice, not protect respecting
religion.
In addition, there are multiple interpretations of religious desecration or abuse of
religion by law enforcement officials. In the decision on judicial review against
No.1/PNPS/1965 Law on Religious Blasphemy, later better known as the Blasphemy Law
Religion conducted by the Constitutional Court, the Court in the decision which rejected the
petition of the petition to revoke the Religious Blasphemy Law, looks confuse the term
defamation of religion (blasphemy), contempt of religion (defamation of religion), and hatred
speech:22
In some countries (Pakistan, England, Ireland, the United States, New Zealand,
Australia, Canada, Sudan, Malaysia, Germany and the European Initiative, red), the
prohibition of hatred speech which set the law by using various terms such as "hatespeech" or "hate propaganda," including the developed countries in Europe that also
took the road out this way. In this connection, the real opinion of title
No.1/PNPS/1965 Law is right, because as we all know, the title of this Act is the
Prevention of Abuse and/or religious blasphemy.23
4. Arrangement Press Freedom in Indonesian Positive LawWhy it is necessary to a balanced arrangement, between the guarantee of press
freedom of expressions and respect for the norms and values that exist in society?
Reporters Sun Frontieres, or better known as Reporters Without Borders (RWB), an
independent press agency based in Paris, France, issued a release of World Press Freedom
Index 2009. In this index, press freedom ranking of Indonesia, namely 101 of 175 countries
with a score of 28.5. Indonesia's position improved from the previous year which was ranked
111th with a score of 2724
. However, in 2010, a decline in the number of press freedom in
Indonesia, which was originally ranked at 101 in 2009 to be ranked 117 out of 178 countries
with a score of 35.83 in the year 201025
. Freedom of the press is said to wash the realization
22 Statement of hatred or hostility are statements disparaging a person or group based on religion, race, class and
sexual orientation. Prohibition of the statement of hate or incitement of hatred that lead to discrimination,
hostility and violence against other religious groups mentioned in the Article 20 of the ICCPR which requires
states to make the statement any propaganda for war, and all actions that advocate hatred based on nationality,
taste or religion that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.23 For more details read the paper Pengaturan Kebebasan Beragama dan Penodaan Agama di Indonesia dan
Berbagai Negara are presented by M. Atho Mudzhar (Head of Research and Development and Training
Ministry of Religious Affairs) in the Study of the Constitutional Court Decision No. 140 dated 19 April 2010 on
judicial review No.1/PNPS/1965 Law, organized by the Ministry of Justice and Human Rights, held at the Hotel
Anna Muara, Padang, on June 28, 2010.24
Data on World Press Freedom Index can be accessed at the official website of Reporters Without Borders,http://en.rsf.org/25Ibid
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
of democracy when the press can be an institution that represents the various groups26
and
interests27
. If the parameter used "freedom of the press = the realization of democracy", then
based on World Press Freedom Index report by RWB above, Indonesia is said to have
setbacks in the process towards democracy.
Indonesian press system, according to Indriyanto Indriyanto Seno Aji in his book
Hukum dan Kebebasan Pers28, is a system of free and responsible press system (a free and
Responsible Press). System of free and responsible press can be interpreted to mean that the
press in carrying out his profession must remain "free" from the primordial subjective view29
and presents a factual news, true, accurate and balanced (cover both sides). Later at a press
control system that is responsible, open opportunities to the public opinion as a consumer to
control the media in performing its social function.
In his book,Law and Society in Transition: Toward Responsive Law, Philippe Nonet
and Philip Selznick, classifies the law in society into three30
, namely: repressive force of law
as a servant (repressive law), law as a separate institution that is able to tame the repression
and to protect the integrity itself (autonomous law), and the law as a facilitator of various
responses to the needs and social aspirations (responsive law).
Table 3
Characteristics of Law No.40 of 1999 on the Press
Indicator Law No.40 of 1999 on the Press
Making Process Participatory, because in the process of making legislative law to receive the
aspirations of the community by incorporating the aspirations of those in the Press
Law of 1999* Guarantee of press freedom: considerations weigh letters a, Article 4 paragraph (1)
and (2), Article 4 paragraph (2) jo Article 18 paragraph (1)
* The protection of journalists: Article 8
* Negate the government's intervention against the press: preamble to weigh the letter
c; Article 15 paragraph (3), (4) and (5) and so on.
Provision of LegalFunctions
In accordance with the will of the people, because it provides protection and aguarantee of press freedom, Terms of sanctions imposed on the press is also quite
light, namely criminal fines.
The formulation of theLaw The provisions on defamation and slander is still not regulated in detail and multipleinterpretations, giving rise to different interpretations in the press for dispute
resolution.
Source: Adapted from Triya Indra Rahmawan Triya Thesis entitled Character Legal Setting Product Releases in
Transition to Democracy in Indonesia, Faculty of Law Brawijaya University of 2010.
26Law, Economics, Politics, Culture, History, Social
27 Interests of the majority and minority groups28 Indriyanto Seno Adji. (2008).Hukum dan Kebebasan Pers. Jakarta: Diadit Media, page 1429
Primordial subjective attitude, making individuals or groups have the attitude of ethnocentrism, that is an
attitude that tends to be subjective in view of the culture of others. They will always look at the culture of others
of its cultural spectacles. Finally, the individual will always uphold its class identity is higher than the other
group (group ego trapped), easily pitted sheep, swindled by the transfers issue.30Philippe Nonet dan Philip Selznick. (2008), translations editions, Law and Society in Transition: Toward
Responsive Law. Bandung: Nusa Media. Page 83-84
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
Among the three types of law and the table above, the most suitable type of law to
match with the type of free and responsible press in the middle of Indonesia's plural society
and sensitive in terms of "religion" is a third type of law, the responsive law.31
Nonet and
Selznick said that responsive law promises a lasting institutional order and stability. Legal
responsive results-oriented, the goals to be achieved outside the law. Legal product that is
responsive character making process is participatory, that is invite as much participation of all
elements of society, both in terms of individuals, or groups in society and also the
aspirational nature that comes from the desire or the will of the community.
Restrictions on press freedom of expression really needs to conduct to avoid the term
"excessive". These kinds of restrictions on freedom of expression contained in the
Convention of the press on the Freedom of Information 1985 in Rome, when news of the
press which substantially contain:32
a. National security and public order;b. Expression to war or to national, racial or religious hatred;c. Incitement to violence and crime;d. Attacks on founders of religion (attack on the founder of the religion that cause
violation of the offense "blasphemy");
e. Public health and moral;f. Rights, honour and reputation of others (the rights, dignity and good name of a
person, which generally includes "contempt offense");
g. Fair administration of justice (generally concerned with offenses involving thecourts then is a form of countempt of court).
In the press law itself sanctions punishment for the press who violate the provisions in
the Article 5 paragraph (1) of the Press, "the national press is obliged to proclaim the events
and opinions with respect for religious norms and a sense of public decency and the principle
of presumption of innocence." has been provided for in the Article 18 paragraph (2) Press
Law, which reads, "Company of the press in violation of the provisions of Article 5
paragraph (1) and paragraph (2), and Article 13 shall be punished by a maximum fine of Rp.500,000,000.00 (five hundred million rupiah)." Sanctions punishment in the form of fines
reflect that the Act No.40 of 1999 on the Press, eliminating the paradigm of the use of
criminal law against the press which led to criminalization. Also, arrangement the
establishment of the independent Press Council as mandated in the Article 15 paragraph (1) -
(7), has provided an opportunity in creating a life of independence of the national press. Birth
31
It should be underlined that according to the above table, the type of press law still has not been responsive32Indriyanto Seno Adji. Op.cit.,Page 59
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
of Press Council is expected to develop a free press freedom and responsibility in the life of
religion and faith in Indonesia.
With regard to the number of cases (read: five cases) journalist who gets a charge of
"blasphemy religion" as defined in article 156a of the Criminal Code. Then came the
question, why not use the Press Law? Why must use the Criminal Code?.
Controversy regarding this press release regarding criminal settlement mechanism,
whether through the criminal justice first, or through the right answer first. Of this there are
two opinions. The first opinion of the press, while the second from the press circle instead.
The press believes, that in the Law on the Press actually has regulated press offenses
resolution mechanisms, namely the first through the Right Answer. If the right answer can
not solve the problem, the Press Council was asked as a mediator. If the Press Council effort
failed, new problems are brought to justice. Thus, efforts to sue the press to court without
going through a mechanism was considered to violate the provisions of the Law on the
Press.33
Second opinion, come from not the press. Judge Zoeber Djajadi, that the Right
Answer as provided in the Article 5 paragraph (1) Law No.40 of 1999, "The press must serve
the Right Answer", can be used, can also not be used by parties who feel aggrieved by the
news. "His name is just right. Rights that can be used, can not. Your not entitled to anyway.
That's right, but not the obligation, so that it can distinguish between rights and
obligations."34
Disagreement over the beginning of the provisions of Law No. 40 of 1999 on the
Press itself, which is not expressly set on this criminalization of the press. Should if we
want to protect the press as a whole, but still based on the appreciation and respect for the
Indonesian Pluralistic Society in terms of religions and beliefs, then the Press Law needs to
be revised to make the Chapter, Article and Paragraph that expressly regulates the dispute
settlement mechanism or legal proceedings in case the press is accused of the crime of the
press (press offenses).
For example if you want to provide protection in Article 5 of the press, the Press Law
should be emphasized that the offense against the press can only be applied if it is done right
answer and mediation with the Press Council; "There is no crime of the press prior to the
Right Answer and mediation with the Press Council. " Then, when it went to court, the court
33 Discussions with "Abel" (Abdi Purnomo), Chairman of the Alliance of Independent Journalists (AJI) period
on 2010-2011 Malang Public Discussion " Reforestation Student Press" on May 28, 201134Tjipta Lesmana. (2005). Kebebasan Pers, antara Indonesia dan Amerika. Jakarta: Publisher Erwin-Rika
Press. Page 18
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
concerned shall use the SEMA (Surat Edaran Mahkamah Agung/Circular Letter of the
Supreme Court) No. 13 dated December 30, 2008 which contains a plea for the release of
judges handling cases inviting expert witnesses from the Press Council. One of the points is
in the handling of cases related to press offenses should hear the testimony of the witness
panel of experts from the Press Council, because it knows the ins and outs of the press in
theory and practice.
In addition to the Press Law should be revised, have also conducted a review of the
definition of blasphemy and/or defamation of religion in the Criminal Code. It is necessary
remember consideration of equation/confusion of the definitions of religious blasphemy with
hatred speech by the Constitutional Court decision in the ruling that rejected the petition to
repeal blasphemy laws.
In this case, the expectations of law enforcement officers, especially the air-show in
the judiciary, such as the Public Prosecutor, Legal Advisor, Judge and the Registrar, has the
knowledge and be able to clearly distinguish where the act which is said to be a religious
blasphemy or a statement of hatred.
Thereafter, law enforcement officials are also expected to further explore and study
the facts of pluralism in Indonesia, recognize and acknowledge that not only there are six
religions in Indonesia.
Article 27 of the International Covenant on Civil and Political Rights, which reads:
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language.
In addition to improving the "umbrella law", members of the press also must conductan internal evaluation of the press itself, and to socialize holistically about Journalism Ethics
Code, which reads, "Indonesian Journalists do not write or broadcast news based on
prejudice or discrimination against someone on the basis of differences in ethnicity, race,
color, religion, sex, and language and not demean the weak, poor, sick, disabled or
handicapped people."35
35 Article 8 of the Code of Ethics of Journalism, signed by 29 organizations of the press in Jakarta, March 14,
2006. Press Council to define through Decree No. 03/SK-DP/III/2006 who then passed as the Press CouncilRegulation No. 6/Rule-DP/V/2008
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
Conclusion
The tension between the press and religious freedom expression of the press has
always been the object of interest to be discussed. The press said as a mouthpiece for the
people instead assessed hurt the feelings of the people for committing contempt, defamation
or desecration of religious and/or beliefs adopted. Associated with it, the author concludes
that:
1. To realize the press freedom of expression that coincided with the attitude ofappreciation, respect to values and religious norms that exist in society, the
government should immediately revise the Law No.40 year 1999 on the Press and
conduct in-depth study on the interpretation of religious defamation by the law
enforcement law.
2. Members of the press in performing the task of the profession is expected stillcling to the pillars of the buffer, the idealism and professionalism that upholds the
ideals of upholding the basic values of democracy and human rights and respect
for diversity.
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
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THESIS
Triya Indra Rahmawan Triya Thesis entitled Character Legal Setting Product Releases in
Transition to Democracy in Indonesia, Faculty of Law Brawijaya University
of 2010.
REGULATIONS
Constitution Indonesian Republic State of 1945
Law No.1 of 1965 on the Prevention of Abuse and / or Religious Blasphemy
Law No.39 of 1999 on Human Rights
Law No.40 of 1999 on the Press
Law No.12 of 2005 on Ratification of the ICCPR
Convention on the Freedom of Information in 1985
Universal Declaration of Human Rights (UDHR) of 1948
Book Criminal Law (Penal Code), Indonesia
PICTURE
Tempo Magazine Cover, accessed from sites
http://kristen.variousforums.net/search?search_author=GSJA_Kediri&show_results=post
Scripture
Al-Quran
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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of
their activities. Shadow of fear will only blunt the sharpness of their pens.
LIST OF TABLES
Table 1 Religions and Beliefs Flow in Indonesia
Table 2 The case of religious desecration/ blasphemy in Indonesia
Table 3 Characteristics of Law No.40 of 1999 on the Press