On 3 April of this year, the Freedom of Information Act (UU Keterbukaan Informasi Publik) was passed into law eight years and four administrations since the bill was first introduced to parliament. The new law promises to open Indonesia’s bureaucracy to public scrutiny, compelling government bodies to disclose information and creating a new independent body to enforce the disclosures and adjudicate disputes. According to the Indonesian press group Alliance of Independent Journalists (AJI), the law was the first in Indonesia to provide a comprehensive set of guarantees to free access to information and only the fifth of its kind in Asia.
But not everyone is celebrating. The law contains a provision under which anyone found guilty of ‘misusing’ information obtained through it can be sentenced up to a year in prison or fined Rp5 million. According to the World Bank, the provision could also be applied to ‘those found guilty of exposing documents related to an individual's privacy, including wills, health records, wealth, performance records, personal journals, and bank records’. Although implementation of the law may not begin until 2010, its wording suggests that powerful tools will be available for individuals or groups to punish those publishing or uncovering damaging information.
Most freedom of information laws around the world don’t penalise journalists for the use of information uncovered through the law. However, the inclusion of these penalties in Indonesia is not surprising, given the long line of laws and policies already available to suppress unflattering or investigative journalism.
A patchwork of laws
In Indonesia the press is regulated through a variety of laws that leave journalists and media companies open to attack. The 1999 Press Law, which annulled the previous two press laws passed under Suharto, was much more liberal than its precursors. The law allows journalists to freely join associations, guarantees the right of journalists to protect their sources and eliminates prior censorship of print or broadcast news. Those found guilty of subverting the independence of the press can be fined or imprisoned. The Press Law was also responsible for the establishment of the Press Council, an independent body whose mission is to mediate between the press, the public and government institutions. It also guarantees the upholding of an ethical code for journalists and has provisions for the adjudication of disputes.
A variety of laws have left journalists and media companies open to attack
However, the Press Law is often ignored. AJI says that out of 42 suits against the media since 1999, only six were actually handled through the Press Law. In its place, aggrieved parties use provisions in Indonesia’s Criminal Code, which offer plaintiffs a much more potent and wide-ranging set of punishments. Most commonly used are articles on criminal defamation and insult. This is bad news for the press. In a 2004 survey of Indonesia’s defamation laws, the UK-based freedom of expression group Article 19 found that ‘both the criminal penalties and the civil damage awards can be wildly disproportionate to the harm likely to be caused; public officials, institutions and even some objects are inappropriately given special status and protection; and the regime as a whole fails to provide for adequate defences’.
Tempo and Tanoto
The implications of these laws were evident in a recent decision by the South Jakarta District Court in a defamation case against the newspaper Koran Tempo. In July 2007, Koran Tempo reported on the alleged connections between illegal loggers and PT Riau Andalan Pulp and Paper (RAPP), one of the largest pulp and paper producers in the world. Three articles published that month described the ongoing police investigation of RAPP and police attempts to question its owner, Sukanto Tanoto. Tanoto is the richest man in Indonesia, with an estimated worth of US$3.8 billion in 2008.
That September, Koran Tempo ran a piece to correct inaccuracies in the original stories after being contacted by RAPP’s lawyer. In October, RAPP filed suit against Tempo’s parent company PT Tempo Inti Media Harian and Koran Tempo’s editor-in-chief for defamation. Tempo’s lawyers protested that RAPP did not approach the issue through the Press Council and noted that they had already given RAPP the ‘right of reply’ – the opportunity to respond to news stories – required under the Press Law.
On 3 July this year, the South Jakarta District Court agreed that Tempo had defamed RAPP and not provided a right of reply, since Koran Tempo had refused to run an unedited statement by RAPP. As a result of the ruling, Tempo must pay damages of Rp220 million. In addition, the newspaper was told to publish a front-page apology for three days, including a statement from RAPP. The apology was also ordered to be broadcast on several TV stations for a week.
The decision was immediately decried by both press freedom and environmental advocates, and the chief editor of Koran Tempo said he would appeal.
RAPP’s case against Koran Tempo is not unique. Bersihar Lubis, another reporter for Koran Tempo, spent a month in jail in early 2008 for writing a piece critical of the Attorney General. Because Lubis’ piece was considered opinion, the court said it could not be dealt with under the Press Law. Lubis was charged with defamation of an authority figure, a criminal offence under the Criminal Code.
Contradictory laws have created ‘a sort of judicial lottery for those charged with defamation’
In another case this year, Radar Jogja’s former general manager Risang Bima Wijaya was imprisoned for six months after writing a series of articles detailing sexual harassment charges against a rival newspaper’s manager. Though his reporting was based on police reports and a press conference held by the victim (and reported by several other news outlets), Wijaya was prosecuted under the Criminal Code for defamation. His appeals were rejected by both the district court and the Supreme Court.
Both Wijaya and Lubis have appealed to the Constitutional Court to review and annul the articles in the Criminal Code which led to their imprisonment.
Other cases illustrate what the group Article 19 has termed ‘a sort of judicial lottery for those charged with defamation’. In 2006, the Supreme Court overturned the criminal charges against Tempo editor Bambang Harymurti, who was sued for defamation by millionaire businessman Tomy Winata. The Court ruled that the case should have been handled under the Press Law, though it stopped short of requiring its use in cases involving the media. Yet in 2007, the Supreme Court infamously ruled to award former President Suharto Rp1 trillion ($AU113 million) in damages, payable by Time magazine for their 1999 article on his illicit fortune.
While the majority of cases brought against the media will not end in this way, the Supreme Court’s uneven support for the Press Law has ensured that the judicial lottery will continue. More pernicious is the effect such cases will have on journalists without the financial or institutional resources to defend themselves in case their reporting offends the wrong person.
Horror stories aside, there have been some encouraging signs of reform to the Criminal Code. In 2006, the Constitutional Court removed articles on insulting the President and Vice President, which carried the threat of fines or imprisonment up to six years. In 2007, the infamous ‘hate sowing’ offences were excised from the Code. Both provisions had been regularly used during the Suharto era to silence dissent and punish journalists.
But more substantial reworkings to the Criminal Code have languished before the parliament for years. Various drafts of the revised code have included vaguely worded articles which punish journalism for inciting ‘social disorder’, challenging Pancasila or spreading Marxist or communist ideas. Recent revisions have increased the number of such articles and could potentially weaken further the 1999 Press Law.
Indonesia’s press environment remains vibrant and largely free from repression, especially compared to the other countries of Southeast Asia. The passing of the Press Law is only one part of the reform that has contributed to the proliferation of media and the space for open debate across the archipelago. But these reforms will remain incomplete without government and civil society pressing for their full implementation. As the conflict around the Freedom of Information Act shows, Indonesia’s courts and politicians seem unsure about how far they should let freedom go. ii
Sebastian Dettman (email@example.com) is the board liaison at the Committee to Protect Journalists in New York City.