Press Council seeks debate on KUHP draft revision

Tony Hotland, The Jakarta Post, Jakarta

The Press Council is drafting alternative versions to proposed modifications of the Criminal Code (KUHP), which are widely considered to stifle media freedom by criminalizing journalists and their work.

A total of 49 articles are being altered to be later presented to the House of Representatives, which is the council's last hope in an attempt to scrap the much-criticized proposed new articles.

The Ministry of Justice and Human Rights has refused to debate the draft revision of the code with any media workers or organizations, the council said on Wednesday.

It warned that the draft will suffocate media freedom.

The council declared as dubiousness certain articles in the draft, which could lead to multiple interpretations and definitions, as well as the criminalization of journalists and their work.

Council deputy head R.H. Siregar said the inclusion of all acts of crime into one book of law meant that other laws enacted to address specific cases, such as Law No. 40/1999 on the press, would be sidelined.

"The draft puts all kinds of crimes together, which could cause legal uncertainties due to overlapping. On the press, this will make it more difficult to use the Press Law as a lex specialis to solve journalism-related disputes," he said.

Moreover, he added, the law failed to elaborate Article 28(f) of the amended 1945 Constitution, which promoted and protected freedom of expression through all available mediums.

By holding journalists directly liable to years of imprisonment, said Siregar, the draft overlooked the legal principle of ultimum remidium, where imprisonment must be the last resort.

"Non-prison settlements are the first sought solution, notably in press cases. Imposition of fines is a common practice as stipulated in the Press Law," he said.

Threatening sections include Article 209 that imposes a maximum penalty of 10 years in jail for any person who spreads or promotes through the media the principles of communism or Marxism-Leninism with the intention of changing or replacing the state ideology of Pancasila.

Another example is Article 308 that imposes fines up to Rp 30 million (US$3,175) or a year's imprisonment on any person found to have disseminated exaggerated or incomplete news that could lead to social disorder.

"Article 209 doesn't elaborate what it means to spread or promote (communism or Marxism-Leninism), and can easily be interpreted in various ways. Whether a news story is exaggerated or incomplete is a journalistic matter, and the draft indeed crosses its domain. Besides, one can actually arrange fake 'social disorder'," Siregar countered.

Another issue is defamation, which in many countries no longer qualifies as a criminal case, but rather a civil matter.

"Developed countries have ceased jailing journalists, and are settling such cases through civil courts instead. Why are we moving back? Note that the press is also obliged to fulfill the rights of questioned persons to reply or correct statements," said Siregar.

An additional article in the draft revision also paves the way for the "recall" of someone from his or her profession, including journalists, if the authorities consider that a "violation" of their profession has occurred.

"A recall is the concern of the relevant professional organization, not the state. This draft is in fact protecting the government from criticism and its obligation for good governance, which the press has a key role to control," said council member Sabam Leo Batubara.

He said the council has sent a letter to President Susilo Bambang Yudhoyono, asking him to order the justice ministry to agree to discuss the contentious articles with the council before the proposal was submitted to the House.

Drafting team head Muladi has said the draft was indeed open to public debate when the deliberations of the bill begin next month at the House, and that those articles could even be scrapped.

The draft was designed in response to demands raised since the 1960s for an overhaul of the Criminal Code. Critics say the existing code, enacted by the Dutch East Indies administration in 1886, is flawed and outdated.

Compared to the existing code that consists of 569 articles, the draft revision has 727 articles, and contains provisions on terrorism, gross human rights abuses and environmental destruction.