Press ban challenge to rule of law

Press ban challenge to rule of law

By J. Soedjati Djiwandono

JAKARTA (JP): The recent revocation of the publishing licenses
of two weekly news magazines and one tabloid has posed a
challenge, not to say a threat, to the rule of law.

What the late former vice president Mohammad Hatta said two
decades ago on receiving an honorary doctorate from the
University of Indonesia, still seems relevant today. He said that
"Pancasila Democracy will only live when Indonesia has become a
state based on law ... Since the establishment of the Republic of
Indonesia, this has been our aspiration."

The Elucidation of Indonesia's 1945 Constitution states that
"The State of Indonesia is based upon Law (Rechtstaat), it is not
based upon mere power (Machstaat)." This surely does not mean
that the Indonesian state as understood in the 1945 Constitution
is based on just any law, decreed by sheer power. Such a law
would represent a form of absolutism or a Machstaat.

King Louis XIV is well-known for his words, L'etat c'est moi,
"I am the state," which reflected his absolute monarchic rule
over 17th century France. In consequence, his words were law. It
is clear, however, that is not the kind of law intended by the
1945 Constitution.

In an ideal state governed by the "philosopher king"
envisioned by Plato, such a law would be just. Indeed, such a
state would need no "law" at all, for the philosopher king would
always have the interests of his people at heart. He could do no
wrong. He would be infallible. He would therefore be beyond
reproach. He would be beyond criticism. He would be perfect.

Such an ideal state, however, never exists in the real world.
And the "philosopher king" remains an ideal. Plato also realized
this. Yet even today, more than 2,000 years later, such a dream
seems to linger on, and hence the idealization of a Ratu Adil
(just king) and Pandito Ratu (philosopher king), in what may be
regarded as Javanese mythology.

The rule of law, which is precisely what a state based upon
law should mean, presupposes a just law, that is to say, based on
justice for the people. That is indeed the principle, I strongly
believe, upheld by Indonesia's 1945 Constitution.

The justice of law is ensured by the democratic process of its
enactment, interpretation and enforcement. And at least in formal
terms, lawmaking in this country has, for the most part,
proceeded along that line, if not in terms of substance.

This largely depends on the degree of independence enjoyed by
the members of the House of Representatives, which affects the
exercise of their legislative rights and the performance of their
legislative functions, whether they simply serve as a rubber
stamp or an equal partner of the executive branch.

Indeed, democracy, which guarantees popular participation,
does not in itself ensure justice. For democracy is the kind of
system that allows the people to make mistakes. They do not
always make the right choices or the right decisions. This
implies the possibility that some laws or regulations may not be
in conformity, or may even be in conflict, with the Constitution,
and thus with Pancasila or the five principles embodied therein.

Part of the beauty of democracy, however, is that it also
provides the people with a means by which they can rectify their
mistakes. One means for this is the possibility of judicial
review. And this, indeed, has been one of the alternatives
offered by the government to the banned mass media as recourse.

This, of course, is impractical, for our political system
simply does not provide the necessary mechanism for it. Such a
mechanism has yet to be developed.

Without a system of judicial review, there can be no judicial
or legal warranty. This encourages the abuse of power, which
occurs when the executive branch, rather than the judiciary,
interprets and thus ensures the enforcement of a law or
regulation of its own making. This is what has happened on a
number occasions when the government has banned the mass media by
revoking their publishing licenses. The experience of Tempo,
Editor, and Detik is just a case in point.

The crucial point here is that banning of the mass media by
withdrawing their publishing licenses without resorting to the
court that provides a means of self-defense is against the
principle of the rule of law. It represents an abuse of power. It
is a serious violation of human rights. It represents a
Machstaat.

Indeed, some argue, with pride instead of shame or
embarrassment, that Indonesia does not adhere to the principle of
the separation of powers. If that were true, then Indonesia would
definitely be a totalitarian state. To be sure, legislative
powers are vested primarily in the presidency. But judicial
powers are not.

Again quoting Bung Hatta, he said on the same occasion, that
"Although the division of powers in the 1945 Constitution follows
the trias politica of Montesquieu, the separation of powers is
not the same." The principle of trias politica, then, if never
fully put into practice anywhere cannot ensure the working of
checks and balances, which characterizes modern democracy, and
guarantees justice.

Indeed, whether or not a publishing license is necessary
may be open to debate. But that is not my concern here. Nor do I
assume that the government has been wrong in its assessment of
the performance of the mass media concerned, and that the media
have been right. That is for none but the court to decide.

Therefore, the other alternative offered to the three media --
to take legal action against the government -- is a fair and
reasonable one. Indeed, the independence and thus the credibility
of the judiciary system in this country may have been questioned.
And the mass media may lose their case.

That, however, is not the point. Of greater significance would
be the legal proceedings, which would be a learning process of
great value for the whole nation towards the establishment and
the strengthening of the rule of law.

The writer is a senior researcher at the Centre for Strategic
and International Studies (CSIS), Jakarta.