Press law, who needs it?

The press freedom Indonesia has enjoyed since the demise of Soeharto's authoritarian regime in May last year is not founded upon any solid legal basis. It has flourished on the basis of the 1982 Press Law enacted to serve the interests of the old regime. The law is undemocratic and gives too much control to the government, while restricting the press in promoting and preserving democracy.

Press freedom has lasted thus far only through the efforts of Minister of Information Muhammad Yunus. The lengths the retired Army lieutenant general has gone to in defending press freedom is quite surprising. Even during the current polemic over the issue of pornographic publications, he has refused to intervene, insisting it is the job of the police, not his office, to prosecute publications which violate the indecency law. Any other person in his position would have stepped in and closed down offending publications to win popularity points.

Yunus is one of the best things -- the only good thing, some might say -- to emerge from the Cabinet of President B.J. Habibie. What other minister would be willing to subscribe to Thomas Jefferson's 1787 statement: "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." What other minister would pronounce his ministry was not really necessary and suggest that it be dissolved only weeks after taking office? If local or foreign political observers were asked to name the single most significant change which has taken place in Indonesia over the past year, most would likely say the amount of freedom the Indonesian press now enjoys.

Alas, there is no guarantee the next information minister, under whoever is elected president in November, will be as staunch a defender of press freedom. Any other person put in charge of the Ministry of Information might find it irresistible to wield their power to control the press.

This danger has long been understood by members of the press. The Indonesian Press and Broadcasting Community, for example, has been pushing for a new press law. Legislation the organization drafted has been circulating over the past few months but nothing has come of it. Bureaucrats in the Ministry of Information have come up with their own legislation, combining the existing press and broadcasting laws into one. More recently, the United Development Party (PPP) took the initiative to submit to the House of Representatives its own draft of a press bill to replace the 1982 law.

It is unclear whether the PPP's move was motivated by a genuine concern for the future of the press or by a desire to win public sympathy ahead of the General Session of the People's Consultative Assembly in November. What is clear, however, is that the House is already faced with too many bills to endorse before it is dissolved in two months to give way to newly elected legislators.

All of these draft bills, while professing to guarantee press freedom, essentially seek to regulate the industry. The draft bills may vary in their leniency, but the bottom line is that all of the proposed bills accord the government the right to regulate the press. They take their cue from Article 28 of the Constitution, which states: "Freedom of association and assembly, of expressing opinions in verbal, written and other means, shall be regulated by law."

The Constitution falls short of outrightly guaranteeing freedom of expression and association. On the contrary, it gives the government the right to regulate these activities. This was the spirit behind the 1982 Press Law and behind the enactment of the 1998 Law on Mass Gatherings by Habibie's administration.

Any fight to ensure real and lasting freedom of the press should therefore start with the Constitution, otherwise the debate about a new press law would be wasteful and futile. Article 28 of the Constitution is open to interpretation, and in all likelihood, the interpretation of those in power will always prevail.

Once the Constitution fully guarantees freedom of the press, we will not need a press law. The Criminal Code has provisions for slander, libel, indecency and other possible abuses and excesses by the press. If the Criminal Code is found wanting, then we should look at its enforcement, the legal system and, if necessary, a review of the code itself. The last thing we want is to enact a new press law which is a replica of the criminal laws and hands power back to the bureaucrats.

Ironically, the press has been diligently reporting the debate on constitutional amendments aimed at limiting the power of the president, but it has neglected its own basic needs. The entire debate has, in fact, ignored Article 28.

If the press is ever allowed the luxury of being partisan rather than impartial, this is the time for it. Sadly, many publications today have become partisan for the wrong reasons.

The press cannot count on politicians and political parties to fight on its behalf. The press must take the lead in making sure that the first amendment to the Constitution is one that guarantees freedom of expression and freedom of the press. This is not only for the future of the press itself, but also for the future of democracy in Indonesia and the well-being of the nation.