Press Council seeks debate on KUHP draft revision

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.