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.