Media law needs a full overhaul<\/p>\n
By A. Muis<\/p>\n
UJUNGPANDANG, South Sulawesi (JP): Rapid changes in social and
\ntechnological developments over the last few years have made the
\nexisting press law obsolete and archaic. It can no longer
\nadequately protect the freedom of the press from arbitrary and
\ndevastating treatment by the authorities and society, or
\nguarantee legal certainty for anybody involved in the national
\npress system.<\/p>\n
The existence of the \"global village\" -- cyber communications
\nor cyberpress -- also demands that Indonesia revise its press law
\nto pave the way for the press to freely disseminate information
\nglobally.<\/p>\n
The Indonesian press is now regulated by Press Law No.
\n21\/1982, which revised laws No. 4\/1967 and No. 11\/1966.<\/p>\n
Amending the press law will mean the formation of a new legal
\npackage for the national press and imply the revision of the
\npenal code, especially its articles governing the press, the law
\non defamation and articles XIV and XV of Law No. 1\/1946. There
\nare, for example, several articles in chapter II of the penal
\ncode and the 1946 law which need to considered for adjustment.<\/p>\n
The revision also will call for the removal of Article 117a of
\nLaw No. 1\/1995 regulating limited liability companies.<\/p>\n
In fact, a new press law should incorporate Article 19 of the
\nuniversal declaration on human rights regarding the freedom of
\ninformation and implement the concept of freedom of information
\nand communication stipulated in Article 28 of the 1945
\nConstitution.<\/p>\n
The 1966 press law, the law on defamation and articles XIV and
\nXV of Law No. 1\/1946 are inconsistent with Article 28 of the
\nConstitution and Article 19 of the universal declaration on human
\nrights concerning freedom of information.<\/p>\n
Article 28 guarantees freedom of information and communication
\nwithout the need of any previous license, but such freedom must
\nbe subject to the consequences of laws, namely the penal law as
\ncivil law.<\/p>\n
This article says that freedom to unite, to get together and
\nto express opinion by speaking (in an oral form) and by writing
\nis determined by law. The freedom of communication may not be
\nlimited through censorship, bridling and regulations called
\nprepublication penalty. The article is actually in accordance
\nwith Article 19 of the universal declaration on human rights.<\/p>\n
Consequently, the law on defamation (haatzaai artikelen) in
\nBook II of the Penal Code (1918) -- e.g. articles 154-155 and
\n207-208 -- should be regarded as against Article 28 of the
\nConstitution, and would be no longer applicable according to
\nArticle V of Law No. 1\/1946.<\/p>\n
In fact, articles 310 to 312 on libel and slander of the penal
\ncode also run counter to Article 28 of the Constitution because
\nthey have the nature of the precommunication penalty. These
\narticles do not allow a defendant, a journalist, to prove the
\ntruth of his\/her accusation to the plaintiff or his\/her
\nslanderous or libelous utterance.<\/p>\n
Also, the formulation of articles XIV-XV of Law No. 1\/1946 are
\ntoo wide or unmeasurable in nature. This penal law could have
\nbeen applied by the police in the case of the publication of
\ntaped telephone conversation purportedly between President B.J.
\nHabibie and Attorney General Andi Muhammad Ghalib, transcripts of
\nwhich were published by Panji Masyarakat magazine and several
\nother mass media.<\/p>\n
The law on defamation and articles 154-155 and 207-208 of the
\npenal code are called formal mass communication offense because
\nthey do not allow a defendant or mass communicator to prove the
\ntruth of the slanderous or libelous utterance which was made
\nopenly.<\/p>\n
In short, the law on defamation and the law of libel\/slander
\nmust be removed. Otherwise, they will be harmful to the newly
\nestablished freedom of the press in this country. At the very
\nleast, the formal nature of the laws must be changed into
\nnonformal ones, e.g. the mass communicators as defendants must be
\npermitted to prove the truth of their defamatory messages,
\ninformation or news\/statement.<\/p>\n
Even the code of enterprise is no longer relevant because the
\npress enterprise is not separated from the media as the channel
\nof information.<\/p>\n
Articles XIV-XV of Law No. 1\/1946 have to do with a
\ncommunication theory in which a journalist may be forced to act
\nas a gatekeeper to filter news at the expense of the free flow of
\ninformation and the public's right to know.<\/p>\n
In relation to the theory of gatekeeping, there is the
\nprevailing problem of partisan press or mission. Some newspapers,
\ntabloids and magazines have become party-bound or party-directed
\npress. When the press becomes party bound or party directed, it
\ninvolves a problem of independence. However, there are mechanisms
\nthat must be observed by journalists, namely news value, the
\nformulation of the 5 W + H, professional code of ethics, rights
\nof fair comment and criticism, rights of reply and correction
\nthat enable the press to be more just and fair in publishing
\nnews. Therefore, it is incorrect to prohibit journalists from
\nbecoming political party leaders or members of political parties.
\nProhibition is also against the principle of press freedom as a
\nhuman right.<\/p>\n
Still, the amendment of the press law implies improvement in
\nthe field of judicial institution. Empowering the court is a must
\nto enable it to maintain a fair trial.<\/p>\n
What is the meaning of freedom of the press? Freedom of the
\npress stands for freedom from licensing, constraints, censorship
\nand other kinds of prepublication penalties. The press must only
\nbe subject to postpublication penalties; the freedom and control
\nof the press should be balanced; and freedom carries concomitant
\nobligations. While on the one hand the press must have freedom
\nfrom licensing, censorship and restrictions, it should on the
\nother hand provide equal freedom for the society to make use of
\nnews columns -- the editorial columns belong to the editors. The
\nphrase \"freedom for\" stands for the rights of the audience to
\nacquire true, accurate and reliable information from the press.<\/p>\n
The meaning of press freedom also includes free access to
\ninformation sources. It follows that information sources have the
\nobligation to be open to the press except for personal privacy
\nand \"off the record\" events\/issues.<\/p>\n
Furthermore, press freedom implies acceptance of modern
\njournalism like investigative reporting, interpretative reporting
\nand participatory journalism or \"truth-as-I-see-it reporting\".
\nNews dissemination must be transparent. In fact, freedom to
\ninform is not identical to information's transparency.<\/p>\n
As the era of a global village has come into being, the
\nnational press system has no choice but to accept a global
\ncommunication culture. In fact, what is coined the national press
\nsystem is nothing more than the subsystem of the global press
\nsystem. This phenomenon could be identified by looking at the
\nnews preference by the mass media. At least 50 percent of the
\nnews column is occupied by foreign news. \"Global village\" is
\nidentical to the news value of global proximity.<\/p>\n
Basically, press freedom, in that very broad sense, implies
\nthe fourth estate theory. As the press plays an important role as
\nthe fourth estate, the law should provide freedom for the press
\naccordingly. But how does the fourth estate work? Simply, it has
\nto act as a watchdog for the implementation of democracy and for
\nthe practice of the government.<\/p>\n
In this era of reform, the national press ought to play an
\nimportant role as an agent of reform. As such, the press also has
\nthe right to act as a watchdog to effectively control the
\ngovernment and to carry out surveillance of the environment in
\nthat the press warns the society of imminent danger. It follows
\nthat society must always be made vigilant in terms of ever
\nincreasing dangers surrounding it.<\/p>\n
Being an agent of reform, a watchdog and the fourth estate,
\nthe press is also in charge of maintaining the peace and
\nproductivity of the society, as Prof. Siebert pointed out.<\/p>\n
Finally, there rises a question whether the national press has
\nabused its freedom leading to the violation of both the laws and
\ncultural norms, as many people argued in recent time.
\nUnfortunately there is no unanimous perception regarding the
\nmeasurement or indicator of \"freedom abuse\".<\/p>\n
While many people are of the opinion that the press has
\nsubstantially abused its freedom in the euphoria of freedom, the
\nMinistry of Information argued against the criticism.<\/p>\n
Society has its own standard to appreciate the practice of
\npress freedom in this era of reform. From the point of view of
\nthe mass communication law, however, abuse of freedom of the
\npress implies violation of either the penal law or civil law.<\/p>\n
The writer is a communications law professor at Hasanudin
\nUniversity in Ujungpandang, South Sulawesi.<\/p>",
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