Media, defamation and judicial review: Comparison with Australia

Media, defamation and judicial review: Comparison with Australia

Alexander Lay, Sydney

The Indonesian Press Council has urged the government to
revise the Criminal Code bill, which it considers too harsh
regarding the press. Indeed, the Alliance of Independent
Journalists (AJI) asserts that if the House of Representatives
passes the bill without revision, then at least 49 provisions in
the bill could be used to send journalists to prison (The Jakarta
Post, May 4, 2005).

Since the New Order era, many journalists have been sentenced
to prison under the Criminal Code. Three AJI activists were
thrown into prison for defaming the New Order regime. In the
reform era, Bambang Harymurti, Tempo chief editor, was sentenced
to one year in prison for libeling Tommy Winata.

This month, again, two senior journalists in Lampung, Darwin
Ruslinur and Budiono Syahputra, received nine-month prison terms
for libeling Alzier Dianis Thabranie, chairman of Golkar Party's
Lampung chapter (The Jakarta Post, May 6, 2005).

However, despite these facts, the government, at least the
team that prepared the bill, seems to have overlooked the
importance of this issue regarding freedom of the press.

Responding to this, some suggested that press people persuade
the House to amend Press Law No. 40/1999 by stating that the
Press Law is a form of lex specialis to the Criminal Code.

In addition, others have suggested that press people convince
the House to amend the defamation provisions in the Criminal
Code. They argue that if the latter succeed then the result would
also be enjoyed by other media such as TV and radio, and people
in general. Considering the ongoing debate over the Criminal Code
bill, it seems that these approaches would be a lengthy process
and would mean it would be a long time before press freedom can
be enjoyed.

Thus, instead of relying only upon the legislation process,
the media could seek a judicial review. This would require the
Constitutional Court to answer the question of whether the
defamation provisions in the Criminal Code, which were enacted
during the Dutch colonial era, violate the right to freedom of
expression, which is expressly guaranteed by Article 28 and 28F
of the 1945 Constitution. If this happened then the decision
could be taken into account by the House before passing the bill.

This option has been available since April 2005, where the
Constitutional Court declared that it had the authority to review
all laws regardless the year of their enactment.

In Australia, the media to some extent succeeded in protecting
freedom of expression with judicial reviews. One example is the
Nationwide case, and another the Australian Capital Television
case, both in 1992. The verdicts in both cases were handed down
by the High Court of Australia on the same day.

These cases are regarded landmarks in the Australian
Constitutional Law regarding freedom of political communication.
Here, political communication was construed broadly as
communications on matters relevant to public affairs, including
political and economic discussions.

Nationwide News Pty Ltd (Nationwide) is the publisher of The
Australian newspaper. On Nov. 14, 1989, the newspaper published
an article titled Advance Australia Fascist which was considered
an attack on the Arbitration Commission and its members.
Nationwide was prosecuted on the basis that by publishing the
article, it was guilty of an offense against Section 299 of the
Industrial Relations Act 1988.

Nationwide defended its position by claiming that Section 299
was invalid because its enactment was beyond the legislative
powers of the Commonwealth Parliament. Since the dispute involved
an interpretation of the Constitution, the case was brought to
the High Court of Australia.

It was unanimously held that Section 299 of the Act was
invalid. In the course of their judgment, the judges employed
various approaches. However, this article discusses two main
approaches, namely the implied right of freedom of political
communication and the proportionality test.

Unlike the 1945 Indonesian Constitution and the American
Constitution, the Australian Constitution does not incorporate
the Bill of Rights, an express guarantee of individual rights,
such as freedom of expression. It was believed that the framers
of the Australian Constitution vested the power to regulate the
rights of Australian people in parliament. This could cause a
problem if parliament enacted laws that contain provisions
considered to repress these rights. This is exactly what happened
in the Nationwide case.

In this case, four members (out of seven) of the High Court
held that Section 299 was invalid because the provision infringed
upon the rights of the Australian people, which the Constitution
implies it guarantees, to discuss political matters.

In the Nationwide case, the importance of freedom of political
communication in a representative democracy was discussed
thoroughly.

By parity of reasoning, the Indonesian media may seek a
judicial review to challenge defamation provisions in the
Criminal Code on the basis that the provisions violate Article 28
and 28F of the 1945 Constitution. These articles expressly
guarantee freedom of expression.

Moreover, they could argue that in protecting their
reputation, the provisions disproportionately restrict freedom of
expression by stipulating harsh sentences. This has a chilling
effect on journalists and people in general.

In our system of representative democracy, the media plays a
significant role in passing on facts and arguments from and to
the people so that they are able to exercise their rights
correctly in an election.

Moreover, the government needs the media to sustain its
program to eliminate corruption within government institutions
and agencies. To do that, however, the media would require a
certain level of freedom, without the threat of being prosecuted,
to supervise and criticize the government.

The writer is a student of the Master of Law program at the
University of Sydney, Australia.