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.