Press ban challenge to rule of law<\/p>\n
By J. Soedjati Djiwandono<\/p>\n
JAKARTA (JP): The recent revocation of the publishing licenses
\nof two weekly news magazines and one tabloid has posed a
\nchallenge, not to say a threat, to the rule of law.<\/p>\n
What the late former vice president Mohammad Hatta said two
\ndecades ago on receiving an honorary doctorate from the
\nUniversity of Indonesia, still seems relevant today. He said that
\n\"Pancasila Democracy will only live when Indonesia has become a
\nstate based on law ... Since the establishment of the Republic of
\nIndonesia, this has been our aspiration.\"<\/p>\n
The Elucidation of Indonesia's 1945 Constitution states that
\n\"The State of Indonesia is based upon Law (Rechtstaat), it is not
\nbased upon mere power (Machstaat).\" This surely does not mean
\nthat the Indonesian state as understood in the 1945 Constitution
\nis based on just any law, decreed by sheer power. Such a law
\nwould represent a form of absolutism or a Machstaat.<\/p>\n
King Louis XIV is well-known for his words, L'etat c'est moi,
\n\"I am the state,\" which reflected his absolute monarchic rule
\nover 17th century France. In consequence, his words were law. It
\nis clear, however, that is not the kind of law intended by the
\n1945 Constitution.<\/p>\n
In an ideal state governed by the \"philosopher king\"
\nenvisioned by Plato, such a law would be just. Indeed, such a
\nstate would need no \"law\" at all, for the philosopher king would
\nalways have the interests of his people at heart. He could do no
\nwrong. He would be infallible. He would therefore be beyond
\nreproach. He would be beyond criticism. He would be perfect.<\/p>\n
Such an ideal state, however, never exists in the real world.
\nAnd the \"philosopher king\" remains an ideal. Plato also realized
\nthis. Yet even today, more than 2,000 years later, such a dream
\nseems to linger on, and hence the idealization of a Ratu Adil
\n(just king) and Pandito Ratu (philosopher king), in what may be
\nregarded as Javanese mythology.<\/p>\n
The rule of law, which is precisely what a state based upon
\nlaw should mean, presupposes a just law, that is to say, based on
\njustice for the people. That is indeed the principle, I strongly
\nbelieve, upheld by Indonesia's 1945 Constitution.<\/p>\n
The justice of law is ensured by the democratic process of its
\nenactment, interpretation and enforcement. And at least in formal
\nterms, lawmaking in this country has, for the most part,
\nproceeded along that line, if not in terms of substance.<\/p>\n
This largely depends on the degree of independence enjoyed by
\nthe members of the House of Representatives, which affects the
\nexercise of their legislative rights and the performance of their
\nlegislative functions, whether they simply serve as a rubber
\nstamp or an equal partner of the executive branch.<\/p>\n
Indeed, democracy, which guarantees popular participation,
\ndoes not in itself ensure justice. For democracy is the kind of
\nsystem that allows the people to make mistakes. They do not
\nalways make the right choices or the right decisions. This
\nimplies the possibility that some laws or regulations may not be
\nin conformity, or may even be in conflict, with the Constitution,
\nand thus with Pancasila or the five principles embodied therein.<\/p>\n
Part of the beauty of democracy, however, is that it also
\nprovides the people with a means by which they can rectify their
\nmistakes. One means for this is the possibility of judicial
\nreview. And this, indeed, has been one of the alternatives
\noffered by the government to the banned mass media as recourse.<\/p>\n
This, of course, is impractical, for our political system
\nsimply does not provide the necessary mechanism for it. Such a
\nmechanism has yet to be developed.<\/p>\n
Without a system of judicial review, there can be no judicial
\nor legal warranty. This encourages the abuse of power, which
\noccurs when the executive branch, rather than the judiciary,
\ninterprets and thus ensures the enforcement of a law or
\nregulation of its own making. This is what has happened on a
\nnumber occasions when the government has banned the mass media by
\nrevoking their publishing licenses. The experience of Tempo,
\nEditor, and Detik is just a case in point.<\/p>\n
The crucial point here is that banning of the mass media by
\nwithdrawing their publishing licenses without resorting to the
\ncourt that provides a means of self-defense is against the
\nprinciple of the rule of law. It represents an abuse of power. It
\nis a serious violation of human rights. It represents a
\nMachstaat.<\/p>\n
Indeed, some argue, with pride instead of shame or
\nembarrassment, that Indonesia does not adhere to the principle of
\nthe separation of powers. If that were true, then Indonesia would
\ndefinitely be a totalitarian state. To be sure, legislative
\npowers are vested primarily in the presidency. But judicial
\npowers are not.<\/p>\n
Again quoting Bung Hatta, he said on the same occasion, that
\n\"Although the division of powers in the 1945 Constitution follows
\nthe trias politica of Montesquieu, the separation of powers is
\nnot the same.\" The principle of trias politica, then, if never
\nfully put into practice anywhere cannot ensure the working of
\nchecks and balances, which characterizes modern democracy, and
\nguarantees justice.<\/p>\n
Indeed, whether or not a publishing license is necessary
\nmay be open to debate. But that is not my concern here. Nor do I
\nassume that the government has been wrong in its assessment of
\nthe performance of the mass media concerned, and that the media
\nhave been right. That is for none but the court to decide.<\/p>\n
Therefore, the other alternative offered to the three media --
\nto take legal action against the government -- is a fair and
\nreasonable one. Indeed, the independence and thus the credibility
\nof the judiciary system in this country may have been questioned.
\nAnd the mass media may lose their case.<\/p>\n
That, however, is not the point. Of greater significance would
\nbe the legal proceedings, which would be a learning process of
\ngreat value for the whole nation towards the establishment and
\nthe strengthening of the rule of law.<\/p>\n
The writer is a senior researcher at the Centre for Strategic
\nand International Studies (CSIS), Jakarta.<\/p>",
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