WAR AGAINST PRESS CRIMINALIZATION

WAR AGAINST PRESS CRIMINALIZATION
By Th. Noor Cahyadi

On Wednesday 20, 2008, Bersihar Lubis, a senior Journalist was sentenced 1 month prison with 3 months for trial period by the Judge of District Court, Depok, West Java. Several months ago, the Judge of District Court, Sleman, Jogjakarta, also sentenced Risang Wijaya, Ex-General Manager of Jawa Post-Radar Jogja for 8 months prison and then Supreme Court sentenced him for 6 months through cassation which he proposed. Risang and Bersihar cases are two of many cases of press criminalization in Indonesia. Aliansi Jurnalis Indonesia (AJI) recorded that there were 75 cases happened during 2007. That increased too many for 2006, that occurred 57 cases.
The cases are ironic cases in the middle of Reformation Era, which freedom of expression and opinion are protected by our constitution including press freedom. Article 28 E, verse 2 and 3, UUD 1945 states it clearly. The rights also are protected by Human Rights Law No.39 tahun 1999, Civil and Political Rights Law No. 12 tahun 2005 and also Press Law No. 40 tahun 1999.
At Bersihar case, The Judge still uses Haatzai Artikelen of KUHP to sentence journalists who deemed offend the authority. The Judge deemed that Bersihar affronted Attorney General in his writing at Tempo newspaper on March 17, 2007 ago by title “Kisah Introgator yang Dungu”. According to the Judge, Bersihar was against the Law, especially article 207 of KUHP. In his column, Bersihar criticized Attorney General’s policy that prohibited books circulation of history lesson for SMP and SMU. According to him, the ban was done blindly without comprehensive research. He quoted Yusuf Isak speech at Indonesia Literature Day in Paris, October 2004. Yusuf Isak told when the attorney officer interrogated him related to publication of Pramudya Ananta Tour’s books. In English speech, Yusuf mentioned word “idiot”. From this word Bersihar used word “dungu”. According to the Judge that word ‘dungu” had a more heavy meaning than “stupid”, the Judge deemed that Bersihar did not only quote but also add new words. Therefore, he qualified the element of article 207 KUHP, he affronted the general authority.
If we try to look at the sentence with constitution law point of view, the Judge should not use article 207 KUHP as an argumentation. This article is a rubber article (Haatzai Artikelen) which has many interpretations. Word “affront” in that article does not have clear criteria that run the chance of being interpreted extend and implemented by the apparatus and the authority as they like. It means that critics can be interpreted as affront. So the interpretations disagree about democracy’s principles and violate the principle of legal security (rechtsonzekerheid).
The Judge should realize that KUHP is derived from Wetboek van Strafrecht voor Nederlandsch – Indie (Staatsblad 1915 Nomor 732), which applied based on Oendang-Oendang 1946 Nomor 1 about Peratoeran Hoekoem Pidana juncto Undang-Undang Nomor 73 Tahun 1958 about Stated Applying to Undang-Undang Nomor 1 Tahun 1946 about Peraturan Hukum Pidana for All Area of Republic of Indonesia and changed Kitab Undang-Undang Hukum Pidana. So that the articles of KUHP are inapplicable and not relevant as the matter stands.
Based on this argumentation, the Constitution Court (MK) declared off rubber articles (Haatzai Artikelen) at KUHP. MK issued two adjudication, they are adjudication No. 013-022/PUU-IV/2006 and No. 6/PUU-V/2007 that declared off articles 134, 136 bis and 137 KUHP, and articles 154 and 155 KUHP and stated that the articles disagreed about the Constitution of the Republic of Indonesia, UUD 1945 article 28 E, verse (2) and (3).
Although article 207 KUHP was not declared off yet by MK, but there is same spirit as articles above. The Judge should become the adjudication of MK as discretion to sentence. Moreover freedom of press is protected and ruled by Press Law No. 40 tahun 1999. The Judge should use this Law to sit in on judgment Bersihar, not use KUHP because this Law is special law for Journalism or press (lex specialis derogate lex generalis).

Against by Judicial Review and Legislative Review
According to writer, there are two ways to war against press criminalization. The first, Press Organizations which have legal standing can bring the articles of KUHP, such as articles 207 and 310 to the Constitution Court (MK) by Judicial Review. Press Organizations have to struggle to declare off the articles because they are always excessively used by the authority and the apparatus to abuse of power which aggrieve journalists. The second, we can propose legislative review to the parliament (DPR). Writer looked that Press Law has many weaknesses. No one of 21 articles of Press Law which loads verses which regulate calumniation, humiliation or aspersion, whereas KUHP loads them. This is one of the reasons of the apparatus (police, attorney, and judge) prefer to use KUHP. Even, in the explanation of article 12 press law ran the chance using KUHP; “…as long as about criminal responsibility refers to the Law prescribes”. Therefore, the Press Council of Indonesia should prepare an amendment of press law which can be applied as lex specialis from KUHP.
However, if we try to think smart that press freedom were ruled by press Law is a mandate of the constitution of the republic of Indonesia, so that everyone, both citizen and state authority, must respect. Using rights to answer as would be regulated by Press Law should be as first way to take when someone feels aggrieved by press, and press must rectify and clarify to public. Through this way we can solve and finish fast the problem and more cost effective.
Finally, freedom of expression both opinion and press needs an awareness and responsible behavior, both media, state authority, and community. Democracy will not run well without awareness and maturity. Our community hopes press able to increase human resources and still able to control the government’s policy. If both function of education and function of controlling runs consecutively so press will be the first pillar of democracy in Indonesia.