South African Supreme Court of Appeal upholds constitutionality of criminal libel

In S. v. Hoho, the Supreme Court of Appeal held that the offence had not fallen into disuse and continued to serve a purpose in democratic society. Writing for the Court, Streicher ends by quoting with firm approval from the Privy Council's holding in Worme:

"Of course, some democratic societies get along without it. But that simply shows that its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal libel, in one form or another, is to be found in the law of many democratic societies, such as England, Canada and Australia. It can accordingly be regarded as a justifiable part of the law of the democratic society..."

Council of Europe Convention on Access to Official Documents

The Council of Europe has adopted a Convention on Access to Official Documents. Cause to celebrate for the worldwide FoI movement, you'd think, but no. The Convention has been criticised for having been developed in secret, with little or no public access to the text in crucial final stages of development. The text of the Convention is also severely lacking, according to NGOs as well as to the Council of Europe's own Parliamentary Assembly who called for a redraft to broaden the scope of authorities covered, impose time limits on the handling of requests, and strengthen the nature of the review processes available to people whose access requests have been denied.

On the bright side, this is still the first international treaty to establish an unequivocal right to access documents held by public bodies, subject to fairly limited exceptions. Exceptions must be precisely laid down in law, be necessary in a democratic society and must be proportionate to the protection of

1. national security, defence and international relations;
2. public safety;
3. the prevention, investigation and prosecution of criminal activities;
4. disciplinary investigations;
5. inspection, control and supervision by public authorities;
6. privacy and other legitimate private interests;
7. commercial and other economic interests;
8. the economic, monetary and exchange rate policies of the state;
9. the equality of parties in court proceedings and the effective administration of Justice;
10. environment; or
11. the deliberations within or between public authorities concerning the examination of a matter.

This is as strong a statement of the right to access as you'll get anywhere(although there's an unfortunate and very silly add-on exception for States with royal families who they feel a need to exempt from the right of access altogether) and the Convention is of value for that reason alone. Time will tell how it will be implemented and whether States will focus on its strengths rather its weaknesses - but the NGO community must not neglect the Convention's strong points.

Evidence against journalists obtained through bug inadmissible, judge says

In the Guardian today:

A journalist who was accused of obtaining police information illegally walked free from court today after a judge ruled that prosecution evidence against her was inadmissible.

Sally Murrer, a reporter on the Milton Keynes Citizen newspaper, had been due to face trial along with a former Thames Valley police detective sergeant, Mark Kearney, after he was accused of leaking information to her.

Kearney was the police officer at the heart of a row over the bugging of Labour MP Sadiq Khan in an unrelated case earlier this year.

Murrer and Kearney were due to face trial after Thames Valley Police secretly recorded conversations that took place between them in the former detective's car.

However, in a landmark ruling today, judge Richard Southwell said that any evidence gathered by police using the bug should be excluded under European laws that protected the rights of journalists and their sources.

Speaking after reporting restrictions were lifted, Murrer said: "This is a victory, not simply for me, but for all journalists. My legal team have been absolutely superb and they have fought for all of us.

"It's been a very long, horrible, nasty and vindictive case and we are all exhausted. We have done all emotions over the last 19 months, now it's just about survival."

The ruling resulted in a costly prosecution case, which relied on the recorded evidence, collapsing before a lengthy trial was due to begin at Kingston Crown Court.

Murrer, 49, was accused of three offences of aiding and abetting misconduct in a public office. She pleaded not guilty to the offences in March.

Kearney, 49, from Leighton Buzzard, had been charged with eight counts of wilful misconduct in a public office by making unlawful disclosures about confidential information between July 2006 and May 2007.

A third man, a private detective and former police officer Derek Webb, 53, from Hertfordshire, pleaded not guilty to five offences of aiding and abetting misconduct in a public office.

They were due to stand trial early next year but have been formally cleared today after their barristers successfully argued that the use of the listening device was a violation of European Human Rights law.

During a four day hearing at Kingston Crown Court this week, judge Southwell was told that under Article 10 of the law, journalists' rights to freedom of expression were protected from interference by the state.

Murrer's solicitor, Louis Charalambous of Simons Muirhead and Burton, said: "Sally Murrer should never have been prosecuted. The safeguards enshrined in law for the protection of journalists have been trampled upon by Thames Valley Police - both at the outset and when they chose to bug Sally's conversations under a warrant that failed to mention that she was a journalist and later when she was arrested and brought to a police station, where, following a strip search and a night in the cells, she faced a gruelling interrogation - while her home and office were searched, and all of her notebooks seized.

"Had the case against Sally gone ahead, it would have signalled a lurch towards a police state, a situation which is abhorrent in the minds of right thinking people."

It was disclosed in February that Kearney had bugged a meeting between Tooting MP Sadiq Khan and his constituent Babar Ahmad, who was being held at Woodhill Prison, Milton Keynes.

Kearney claimed he was pressurised by the Metropolitan Police to secretly record the meeting.

Even though Murrer's charges were not connected to the MP bugging row, she has previously said she believes it is the "missing piece" in the jigsaw puzzle of her case.

Murrer has said that she believes that concern on the part of the police that Kearney - who she describes as a friend - would blow the whistle on the Khan bugging may explain the investigations into both of them, launched last year.

The National Union of Journalists, which had been backing Murrer, said Thames Valley police and the Crown Prosecution Service should be made to answer for the costly failed prosecution.

Jeremy Dear, the NUJ general secretary, said: "This is a major victory, not just for Sally but for all journalists. This case was yet another example of members of the police force believing they were above the law, able to trample over well-established journalistic rights and freedoms.

"Let's be clear, this was an attempt to make a criminal out of a journalist for receiving information that the state didn't want to get out. It was a misguided prosecution that sought to punish Sally for simply doing her job.

"This judgment sends a clear message to the authorities: they must recognise the importance of free and open journalism. Hard questions must now be asked of the police and CPS as to why these costly proceedings were allowed to get so far."

What price privacy?

The European Court of Human Rights' latest judgment in an Article 8 vs. Article 10 case raises an interesting question: what price privacy? Local courts awarded just under €3000 for an admittedly pretty egregious attack on privacy; the European Court said 'not enough' and found a violation of the applicant's right to private life. The judgment makes interesting reading and raises several questions - not just what is the appropriate price for a breach of medical privacy, but also whether a true statement of fact can be defamatory (something which Zagrebelsky, dissenting, seems to think but which the Court omits to discus). Even more interesting is that Popovic and Tsotsoria concur in the substance of the finding, but then dissent from the damages awarded by the European Court - €6500 - on the ground that this is too high.

Dutch abolish crime of blasphemy

The Dutch cabinet has reportedly voted to abolish the crime of blasphemy. It is a bit of a double-edged sword, however, as in its place it proposes to introduce new criminal restrictions on insulting people for their religious convictions. This 'cure' may be worse than the malady; given the number of thin-skinned religionists in the Netherlands (as elsewhere) today, it's a sure bet that there will be more than a few requests for prosecution...

Raja Petra update

Raja Petra, a Malaysian on-line magazine editor, has been charged with sedition as well as under the Internal Security Act for a piece that he wrote back in April alleging the involvement of the deputy prime minister in a murder case. He is currently detained under the ISA.A habeas corpus application asking for his release will be decided on November 7, but even if he is freed then his sedition trial is set to continue November 10. In a piece that he wrote in another online publication, Access Malaysia, he describes this as the government taking out a double insurance policy to make sure he is kept behind lock and key.

A group of media defense lawyers from the region are cooperating in his defence. Malik Imtiaz is acting for Raja Petra (see here for his blog report on the hearing of 22nd October). The IBA sent observers to his habeas corpus hearing - George Hwang, from Singapore, was one of them. H.R. Dipendra, another Malaysian lawyer, was instructed by the Media Legal Defence Initiative (the new organisation set up to support media defence litigation) and SEAPA to also attend as 'watching brief' counsel and submitted a statement international human rights standards on administrative detention.

Buying at gunpoint

There have been reports recently of military or armed police buying at gun-point all copies of a newspaper that for some reason they don't wish to see the light of day. While one reaction to that might be to print more copies and continue selling them to the police, this may not always be possible and the practice does result in the public not getting the news. It's an unusual form of censorship and there is some US case law on it - surprisingly recent in fact - but I wonder if this issue has been litigated in other countries.

Testifying for media freedom - but at what price

CPJ have done a great story on one of the key witnesses in the Chief Manneh case at the ECOWAS Court of Justice. It's both impressive and disturbing - having given evidence against the Gambian government, Ousman Darboe has had to give up his job and his life in the Gambia and is now in what amounts to a witness protection programme in the United States, with his wife and children. It's a stark illustration of the difficulties encountered in bringing impunity cases, and something not to be ignored. It raises a legitimate question: was this too high a price for getting a judgment against the Gambia? Perhaps not - the Manneh case set an important standard and helped put the ECOWAS court on the map as a realistic avenue for redress for human rights abuses - but the price paid by witnesses is an important factor to take into account.

Recent trends in Strasbourg caselaw - freedom of expression in decline?

I took part in a conference at the European Court of Human Rights last week to discuss what the organisers described as 'recent restrictive trends in Article 10 case law'. It was a concern close to my heart - I've been worried about it ever since the Pedersen case went the 'wrong' way - and one that it turned out is shared by a great many media law practitioners. Cases such as Lindon, Stoll, Flux (no. 6) v. Moldova, Schmidt v. Austria, Rumyana Ivanova v. Bulgaria, Tara and Poiata v. Moldova and Hachette Filipacchi v. France are just a few of the judgments issued in the last year which I believe wrongly favour personality rights and interests over the right to freedom of expression.

My concern with recent restrictive case law of the European Court of Human Rights on Article 10 is not only that it sets a poor precedent within the Council of Europe area, but that it may also influence negatively legal developments in other parts of the world. For example, there has been recent litigation in South Africa and in Indonesia challenging criminal libel laws in these countries. There are good reasons to support de-criminalisation in both countries and we advised lawyers acting for the plaintiffs on ‘classic’ ECHR Article 10 case law to support their challenge. Unfortunately, lawyers acting for the government were able to rely on some of the Court’s newer cases and defeated the challenges. This is just one example of the unfortunate ‘external’ influence of restrictive ECHR case law.

The keynote speaker at the conference, Judge Rozakis, did not think that a restrictive ‘trend’ could be identified in the Court’s recent Article 10 decisions. He argued that decisions such as Stoll v. Switzerland and Lindon and others v. France are to be seen as accidents, temporary dips, in an otherwise consistently liberal line of cases. Although I would very much like to agree with him, I’m afraid that I cannot. While the Von Hanover decision ought perhaps to be distinguished on its facts, and Stoll possibly was an ‘accident’, a review of the Court’s case law of the last 12 months or so reveals a string of decisions that reveal a (sometimes very) restrictive interpretation of the right to freedom of expression - see the string I cite above, and that's just a few of them. Recently, even in cases where the Court does find a violation of the right to freedom of expression, for example in Vajnai v. Hungary in which the applicant had been convicted for doing no more than wearing a red star, it is almost apologetic in holding so.

There seems to have been a fundamental shift in the Strasbourg Court's attitude to the relationship between free expression and personality rights. In previous cases - Lingens being the ultimate example - the Court would take a principled stance and defend the free circululation of information over a degree of harm to the personality rights of public figures. With Lindon, this seems to have gone - Gavin Millar, one of the speakers, spoke of the 'spirit of Lingens' being missing from the Court's recent case law.

One of the main reasons for this shift, I think, is very simply the poor reputation that journalism has among members of the Court. Consider the concurring opinion issued by Judge Loucaides – who has long been in favour of stronger protection for personality rights – in Lindon:

“[T]he case-law on the subject of freedom of speech has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity … This approach cannot be in line with the correct interpretation of the Convention.
…
[T]he mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”

While the majority judgment isn’t as direct as this, I think it has been strongly influenced by this sentiment. What is particularly interesting is that Judge Loucaides issued a similarly worded statement in his dissent in the Commission's report in Bladet Tromsø A/S and Pål Stensaas v. Norway, in 1998. He was in the minority then; now, ten years later, it seems the Court has come around to his point of view. Judge Loucaides has since retired but I am concerned that his spirit is present in many of the judgments we are discussing today – while the spirit of Lingens identified in Gavin Millar’s paper and evident in previous case law seems to be missing in action.

Judge Loucaides is right to observe that the Court has in the past strongly protected the right to freedom of expression. But there always have been and continue to be very good reasons for that. Privacy and libel laws have historically been relied on by the rich and powerful to hide corrupt practices and suppress legitimate criticism of them. Unfortunately, that practice remains a reality in many Council of Europe countries. Only the day before the conference, on 9 October 2008, the Slovenian Prime Minister requested that the state prosecutor’s office initiate criminal defamation proceedings against a Finnish journalist in ‘response’ to allegations of corruption made by him. In any democracy, such allegations are properly discussed and debated through the media, particularly when the target of the allegations is the prime minister and has ample access to radio, television and print media. To allow instead the state prosecutorial machinery to be brought to bear against journalists in a criminal libel action has an extremely detrimental effect on freedom of expression and basic democratic values. This is only one example of such a case; a brief trawl through the news archives reveals many similar instances of abuse of criminal as well as civil libel and privacy laws.

A related development is the Court's recent insistence on 'moderation of language' in public debate. ‘Classic’ ECHR case law such as Handyside v. the UK emphasises that the right to freedom of expression “is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” Moreover, it is well-established – until recently, that is – that “[j]ournalistic freedom … covers possible recourse to a degree of exaggeration, or even provocation.” Classic ECHR case law interprets this to mean, for example, that the media are free to use hyperbole, satire or colourful imagery to convey a particular message. The choice as to the form of expression is up to the media. For example, the Court’s classic case law will not criticise a newspaper for choosing to voice its criticism in the form of a satirical cartoon and – it has urged – neither should national courts.

Recent case law appears to be departing from this. In Lindon, a case in which a novelist had used harsh words in a novel concerning Jean-Marie Le Pen, an right wing politician convicted of inciting race hatred, rather than pointing to the extreme opinions routinely voiced by Le Pen and his string of convictions for inciting racial hatred the Court demands instead that the applicant should have “abide[d] by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.” Contrast this with the Court’s ‘classic’ approach, in cases such as Oberschlick v. Austria (No. 2). In that case, it was considered legitimate for the applicant to have used strong and provocative language in response to a politician who himself was similarly outspoken. As a Grand Chamber judgment, I fear that Lindon will be seen as setting the new benchmark and that Oberschlick (No. 2) is relegated to the dustbin.

The Court’s recent judgment in Leroy v. France goes even further and finds that a provocative cartoon of the attack on the Twin Towers accompanied by the text “we all dreamed of it … Hamas did it” could be punished under anti-terrorist laws even when there was neither intent to incite violence nor any clear risk thereof. It is extremely difficult to see how this can be squared with the Court’s string of Turkish cases in which it routinely found that even in a situation of near-civil war, States still needed to exercise caution in resorting to the criminal law to suppress speech and would not allow the suppression of poetry that glorified violence so long as it did not incite it.

So where does all of this leave us, and where will the Court go from here? In his dissent in Flux v. Moldova (No. 6), Judge Bonello issued a stark warning:

I fear this judgment has thrown the protection of freedom of expression as far back as it possibly could. Journalists have been told what to expect if they publish anything disturbing to the authorities, however pressing the social need and sufficient the factual basis are, if their professional behaviour leaves anything to be desired. Even if alarming facts are sufficiently borne out by evidence, in the balancing exercise to establish proportionality, disregard for professional norms is deemed by Strasbourg to be more serious than the suppression of democratic debate on public corruption. To put it differently, in the Court's view the social need to fight poor journalism is more pressing than that of fighting rich corruption. The 'chilling effect' of sanctions against press freedom dreaded by the Court's old case-law has materialised through the Court's new one.

I for one am concerned that Judge Bonello may very well be right. We heard at the conference that media lawyers are no longer sure how to advise their clients; this cannot but be bad for democracy and society as a whole. Those paragraphs in the Court’s ‘old’ case-law about the importance of freedom of expression in a democracy and the media’s role as watchdog of democratic society contained wise words that deserve better than to be quoted in the first few paragraphs of a judgment only to be ignored later on. The Court’s recent case law has a very serious impact on media freedom and, as a result, on the ability of the media to publish on matters that are of concern to us all. The media must be allowed to continue in its function as watchdog of democratic society, and for this to happen, the Court must reclaim its status of a beacon for the protection of human rights and democratic society. This will be to the ultimate benefit not only of Europeans, but all those who have traditionally looked to the Court for guidance and inspiration on matters of human rights.

Mosley takes privacy application to Strasbourg

Max Mosley has lodged an application with the European Court of Human Rights in Strasbourg asking for a ruling on the point of principle that newspapers should notify subjects of their stories prior to publication to allow them time to seek an injunction. If accepted, thsi would be tremendously detrimental to freedom of expression and the ability of both media and NGOs to report on issues of public interest. Watch this space...

House passes libel tourism bill

In the shadow of the economic crisis, the US House of Representatives has passed a libel tourism bill. Good stuff.

Malaysian bloggers: one freed, one behind bars for two years

The Herald Tribune reports that Syed Azidi Syed Aziz, who writes Kickdefella, has been freed from detention. He had been arrested and investigated for sedition after publishing a picture of the Malaysian flag upside down as a form of protest.

Meanwhile....

Raja Petra has been arrested and is facing two years detention under the Internal Security Act - he's a national security risk, apparently. The man is clearly not and his detention is clearly politically motivated. A habeas corpus petition for his release will be filed soon.

Ex-Thai PM Samak sentenced to jail for defamation

Even allowing for the politics involved in this case, this is an extremely harsh sentence:

http://in.reuters.com/article/worldNews/idINIndia-35640720080925

Ex-Thai PM Samak sentenced to jail for defamation
Thu Sep 25, 2008 12:25pm IST

BANGKOK (Reuters) - Thailand's Court of Appeals confirmed a two-year jail term for defamation on former Prime Minister Samak Sundaravej, who stepped down earlier this month after another court found him guilty of a conflict of interest.

A judge reading the verdict on Thursday said there was no reason to suspend jail terms handed down by the Criminal Court, which had found Samak and co-defendant Dusit Siriwan guilty of defaming a former deputy governor of Bangkok in 2006.

"After considering what the defendants have done, there is no reason to withhold their penalty," the judge said.

Samak showed no emotion when the verdict was announced and slipped out of court through a side door, avoiding the hundreds of journalists waiting at the main gate.

He was freed on 200,000 baht ($6,000) bail while waiting for a decision on an appeal request, lawyer Prachum Thongmee told reporters.

"We are trying to get permission from either the court or the attorney-general to appeal to the Supreme Court within the legal window of 30 days," Prachum said.

Samak is still a member of parliament, so parliamentary privilege should allow him to stay out of jail until the end of the House of Representatives session in November.

The lawsuit was a crucial factor behind the decision of many MPs in the ruling People Power Party to ask Samak, their party leader, not to run for prime minister again after he was forced to step down.

Plaintiff Samart Rachapolrasit, who was the subject of slanderous remarks by Samak in two TV shows, said he would also seek 100 million baht ($3 million) compensation from Samak in the Civil Court.

"The wheel of karma has taken its course and I will not bow to any request for compromise," Samart told reporters after the verdict.

former president of Taiwan cleared of libel

Nothing precedent-setting here, I don't think, but this might still be a useful case to cit ein other places in the region:

http://www.radioaustralia.net.au/news/stories/200809/s2360213.htm?tab=latest

"A Taiwan court has cleared the former president, Chen Shui-bian, of defamation charges over allegations that the military had received kickbacks in a deal to buy six French-made Lafayette-class frigates in 1991.

Five retired officials had sued Mr Chen for alleging in 2005 they had taken $US20 million in kickbacks in connection with the controversial deal.

In dismissing the case, the Taipei district court said the deal was a public matter which should be subject to scrutiny.

Two lawmakers from the pro-independence opposition Democratic Progressive Party were also cleared of the same charges.

A 2001 French judicial probe on the $2.8 billion deal claims much of the money paid by Taiwan went towards commissions to middlemen, politicians and military officers in Taiwan, China and France."

full text of Indonesian Constitutional Court judgment upholding constitutionality of criminal libel

Number 14/PUU-VI/2008

PRO JUSTITIA BASED ON THE ONE SUPREME GOD

CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] Hearing, trying, and judging the constitutional cases at first and final instances, has passed judgment in a case of Petition for Review of Penal Code against the Law of the State of the Republic of Indonesia Of 1945, instituted by:

[1.2] 1. Risang Bima Wijaya, S.H., born in Bangkalan, October 5, 1973, Moslem, General Director of Radar Jogja, Indonesian national, having his address at Perum Griya Abadi Number 1-2 RT.004, RW.001 Desa (Village) Bilaporah, Kecamatan (Sub-district) Socah, Kabupaten (District) Bangkalan, East Java Province;

Hereinafter referred to as ----------------Petitioner I;

 2. Bersihar Lubis, born in Gunung Tua Tapanuli Selatan, February 25, 1950, Moslem, Journalist/columnist, Indonesian national, having his address at Perum Depok Maharaja Blok D Number 06 RT.04/15 Kelurahan (Village) Rangkapan Jaya, Kecamatan (Sub-district) Pancoran Mas, Kota (Municipality) Depok;

Hereinafter referred to as --------------Petitioner II;

 

By virtue of a Special Power of Attorney dated March 19, 2008 and March 24, 2008, the abovementioned Petitioners empower Hendrayana, S.H.; Sholeh Ali, S.H.; Muhammad Halim, S.H.; Anggara, S.H.; Mimi Maftuha, S.H.; Adiani Viviana, S.H.; Irsan Pardosi,S.H.; Bayu Wicaksono, S.H.; Nawawi Bahrudin, S.H.; Endar Sumarsono, S.H.; respectively acting as advocates/ General Lawyers and Assistants to Advocates/ Assistants to General Lawyers of Office of Press Legal Assistance having its address at Jalan Prof. Dr. Soepomo, S.H., Komplek Bier Number 1 A, Menteng Dalam, Jakarta Selatan – 12870, in this case acting severally and jointly for and on behalf of the principals;

 

Hereinafter referred to as --------------------- Petitioners;

 

[1.3] Having read the Petitioners’ petition;

Having heard and read the Petitioners’ statement;

Having heard and read the statements of the Government and the Penal Code Formulating Team;

Having heard and read the statement of the Parties Related To Press Board;

Having heard and read the statement of the Parties Related To Independent Journalist Alliance;

Having read the statement of the Parties Related To Indonesian Journalist Association;

Having heard the statement of the Parties Related To Indonesian Television Journalist Association;

Having heard and read the statement of the experts of the Petitioners;

Having heard and read the statement of the witnesses of the Petitioners;

Having heard and read the statement of the experts of the Government;

Having examining the exhibits presented by the Petitioners;

Having read the written statement ad informandum of Indonesian Anti Corruption People’s Movement and Legal Assistance and Human Rights Association;

Having read the conclusion of the Petitioners;

3. LEGAL CONSIDERATIONS

[3.1] Considering that the aim and objective of the petition a quo are to test the constitutionality of Article 310 paragraphs (1), (2), Article 311 paragraph (1), Article 316, Article 207 of Penal Code (hereinafter referred to as Penal Code) against the Constitution of the State of the Republic of Indonesia Of 1945 (hereinafter referred to as the Constitution 1945).

[3.2] Considering, before considering the point of consideration, the Constitutional Court (hereinafter referred to as Court) first of all has to consider:

1. Whether or not the Court is competent to hear, try, and judge the petition a quo;

2. Whether or not the Petitioners have legal standing to serve as the Petitioners in the petition a quo.

Concerning the same, the Court is of the opinion that:

The Court’s Competence

[3.3] Considering that pursuant to Article 24C paragraph (1) of the Constitution 1945 juncto Article 12 paragraph (1) of Law Number 4 Of 2004 on Judicature Authority (State Gazette of the Republic of Indonesia Of 2004 Number 8, Supplement to State Gazette of the Republic of Indonesia Number 4358) and Article 10 paragraph (1) of Law Number 24 Of 2003 on Constitutional Court (State Gazette of the Republic of Indonesia Of 2003 Number 98, Supplement to State Gazettee of the Republic of Indonesia Number 4316, hereinafter referred to as Law on Constitutional Court), the Court is competent to try at the first and final instances whose judgment is final in nature for, among others, reviewing the Constitution 1945.

[3.4] Considering that the petition a quo is the petition for reviewing the law, in casu Penal Code, against the Constitution 1945. therefore, the Court is competent is hear, try, and judge the same.

Legal Standing of the Petitioners

[3.5] Considering that Article 51 paragraph (1) of Law on Constitutional Court indicates that the Petitioners are parties  considering that their constitutional rights and/or competence are harmed by the effectiveness of the law, namely:

a. Indonesian national;

b. traditional law community unit as long as it still exists and complies with the social development and the principle of the Unitary State of the Republic of Indonesia stipulated in law;

c. public or private corporate body; or

d. state institution.

Therefore, to accept a party’s legal standing in a request for reviewing a law against the Constitution 1945, the party should first of all: 

a.explain his/her capacity whether or not he/she is an Indonesian national, traditional law community unit, corporate body, or state institution;

b.explain the loss of his/her constitutional rights and/or authorities in a capacity as referred to in the point a.

[3.6] Also considering, as of Judgment Number 11/PUU-V/2007 dated September 20, 2007, and any further judgments, the Court is of the opinion that  the following requirements shall be fulfilled to say that there is a loss of constitutional rights and/or authorities:

a. there are constitutional rights and/or authorities of the Petitioners conferred  upon by the Constitution 1945;

b. the Petitioners consider that their constitutional rights and/or authorities are harmed by the effectiveness of the constitution of which the review is petitioned;

c  the constitutional loss shall be specific and actual or at least potential in nature that will certainly occur according to the proper reasoning;

d. there is the causal verband between the loss and the effectiveness of the constitution of which the review is petitioned;

e. there is a possibility that with the granting of the petition, the constitutional loss as alleged will not or does not occur anymore;

[3.7] Considering that the Petitioners, both the Petitioner I and the Petitioner II have explained their respective capacities as follows:   

1.The Petitioner I, Risang Bima Wijaya, S.H., is an Indonesian national having the journalist profession;

2.The Petitioner II, Bersihar Lubis, is an Indonesian national having the columnist/journalist profession.

 

With the statement of the Petitioners as described in the items 1 and 2, the Petitioners fulfil one of the requirements to institute the petition for reviewing the law as referred to in the Article 51 paragraph (1) of Law on Constitutional Court. Thing that should be further considered by the Court is whether or not in such capacities the constitutional right of the Petitioners is harmed by the effectiveness of Article 310 paragraphs (1), (2), Article 311 paragraph (1), Article 316, and Article 207 of Penal Code;

[3.8] Considering that in considering its constitutional loss in consequence of Article 310 paragraphs (1) and (2), Article 311 paragraph (1), Article 316, Article 207 of Penal Code, as completely contained in the section of Casus Positio of this judgment, the Petitioners present the argumentation principally indicating as follows:

 

[3.8.1] Petitioner I

a.That, the Petitioner I, Risang Bima Wijaya, S.H., as the journalist, wrote a news in Radar Jogja Daily on sexual harassment committed by Soemardi Martono Wonohito, the Manager of Kedaulatan Rakyat Daily Newspaper/the Director of BP SKH of Kedaulatan Rakyat Yogyakarta. The news, according to the Petitioner, is intended to give the information on the case committed by the quite famous community figure. In writing the news, the Petitioner I reported the fact and mentioned the clear resource persons as well as tried to confirm to Soemardi Martono Wonohito, by phone, letter, and even by coming directly to the office of the relevant party;

b.That, in consequence of the news as described in the point a, the Petitioner I was complained to the Police on a charge of defamation. Further, the Petitioner I was remanded to the court on the first charge of violating Article 311 paragraph (1) juncto Article 64 paragraph (1) of Penal Code or the second charge of violating Article 310 paragraph (2) juncto Article 64 paragraph (1) of Penal Code or the second charge of violating Article 310 paragraph (1) juncto Article 64 of Penal Code;

c.That, by the court, the Petitioner I was judged to be guilty of legally and convincingly committing insult and defamation criminal act as stipulated in Article 310 paragraph (2) juncto Article 64 paragraph (1) of Penal Code, where the judgment has had a permanent force of law (Exhibits P-7, P-8, P-9);

d.   That, the Petitioner I considers that his constitutional right guaranteed by Article 28E paragraphs (2) and (3), and Article 28F of the Constitution 1945 is harmed by the effectiveness of imprisonment in Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) of Penal Code.

 

[3.8.2] Petitioner II

a. That, the Petitioner II, Bersihar Lubis, a columnist and journalist, wrote an article in Tempo Newspaper opinion column on March 17, 2007 entitled “Story of a Stupid Interrogator”. This Petitioner II’s opinion relates to the prohibition of circulation of lesson text books of Junior High School and Senior High School by the Attorney General on March 5, 2007 for not containing the history of Revolt of Indonesian Communist Party (PKI) in Madiun in 1948 and that in 1965;

b. That, according to the Petitioner II, in addition to the pros and cons of the prohibition by the Attorney General, the article was also encouraged with a question on whether or not the prohibition has been based on the scientific study of the historians or is just a power;

c. That, the Petitioner II took the opinion entitled “The Story of a Stupid Interrogator” from the story of Joesoef Isak written in Medium Magazine upon speaking on “Indonesian Literature Day” in Paris in October 2004 where at that time he told about an event when he was interrogated by the Attorney General for publishing the books of Pramudya Ananta Toer;

d. That, in consequence of the article, the Petitioner II was tried and imprisoned for one month with a probationary period of three months by the District Court of Depok because his article proves to insult the public ruler as referred to in the Article 207 of Penal Code (Exhibit P-20);

e. That, based on the description in points a through d, the Petitioner II considers that the effectiveness of imprisonment contained Article 310 paragraph (1), Article 316, and Article 207 of Penal Code harms his constitutional rights and contravenes Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945.

 

[3.9] Considering that based on the description in the above paragraphs [3.7] and [3.8], the Court is of the opinion that the Petitioner I and the Petitioner II fulfil the requirements of legal standing to serve as the Petitioners in the petition a quo. Therefore, the Court shall further consider the point of the petition.

Point of the Petition

[3.10] Considering that the point of the petition and the constitutional issue of the petition a quo is whether or not the imprisonment as contained in Article 207, Article 310 paragraphs (1), (2), Article 311 paragraph (1), and Article 316 of the Penal Code is constitutional. The Articles in the Penal Code read as follows:

• Article 207 of Penal Code, “Anyone who deliberately insults the existing ruler or   corporate body in Indonesia orally and writing shall be threatened with the maximum imprisonment of one year or the maximum penalty of three hundred rupiah”;

• Article 310 paragraph (1) of Penal Code, “Anyone who deliberately attacks someone’s honour or reputation, by accusing him/her of committing something, for people cognizance, shall be threatened, due to the vilification, with the maximum imprisonment of nine months or the maximum penalty of three hundred rupiah”;

• Article 310 paragraph (2) of Penal Code, “If it is made by an article or picture so broadcasted, showed or stuck before the public, the guilty person shall, due to the written vilification, be threatened with the maximum imprisonment of one year and four months or the maximum penalty of three hundred rupiah”;

• Article 311 paragraph (1) of Penal Code, “If someone who commits the vilification or the written vilification, is allowed to prove that the accusation is not true and proven and the accusation contravenes what is known, he/she/they shall due to the slander, be threatened with the maximum imprisonment of four years”;

• Article 316 of Penal Code, “The imprisonment or penalty stipulated in the previous articles in this chapter can be added one-thirds if the insulted person is an official implementing his/her lawful assignment”.

The Petitions allege that the Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code violate Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945. They also allege that Article 207 and Article 316 of the Penal Code contravene Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945. While, Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 respectively read as follows:

• Article 27 paragraph (1) of the Constitution 1945, “All citizens have equal position before the law and government and shall hold high the law and government, nothing excepted”;

• Article 28E paragraph (2) of the Constitution 1945, “Each person shall be entitled to freedom of belief, mind and attitude, conscientiously”;

• Article 28E paragraph (3) of the Constitution 1945, “Each person shall be entitled to freedom to unity, gathering, and expression of opinions”,

• Article 28F of the Constitution 1945, “Each person shall be entitled to communicate and receive any information to develop their social personality and environment, and find, obtain, have, keep, process, and submit any information by using all types of channel available”;

[3.11] Considering, further, to support their allegations, in addition to submitting the written exhibits, the Petitioners also present the witnesses and experts whose statement is heard before the Court and/or who gives the written statement, as completely read in this section of Casus Positio. The witnesses and experts principally state as follows:

[3.11.1] The Petitioners’ Witness, Kho Seng-Seng

In a hearing on June 24, 2008, the witness stated that he wrote a reader’s letter in a national daily telling a deception by PT. Duta Pertiwi Tbk., developer. The developer then objected the same by the same media and compelled the witness but the witness holds out. Then, he wrote another reader’s letter in two daily newspapers telling the threat by the developer (PT. Duta Pertiwi Tbk) to thousands of buyers of kiosks. This reader’s letter was then objected again by PT. Duta Pertiwi Tbk. Based on the both reader’s letters, the witness was complained by PT. Duta Pertiwi Tbk to the Headquarter of Indonesian Police on three charges: insult, defamation, and uncomfortable deed, as stipulated in Articles 310, 311, and 335 of the Penal Code.

 

[3.11.2] The Petitioners’ Witness, Ahmad Taufik

 

In a hearing on July 23, 2008, the witness stated that he and his friend, Teuku Iskandar Ali, being the journalists of Tempo Magazine, were charged by the District Attorney General of Jakarta Pusat based on Article 311 paragraph (1) and Article 310 paragraph (1) of the Penal Code in relation to his journalistic article in Tempo Magazine, March 3/9, 2003 edition, entitled “Is There Tomy at Tenabang?”. The witness is considered to have committed an action to disseminate a false news or information, deliberately made a disturbance, and soiled Tommy Winata’s reputation. Due to the charges, the witness does not focus on his work, is refused by important resource persons, the witness’s family is terrorized, and the witness feels that his movement to find some news is limited.

 

 [3.11.3] The Petitioners’ Expert, Heru Hendratmoko

 

The Expert Heru Hendratmoko, in a hearing on June 24, 2008 stated:

o That, according to the expert, as of the 1998 reform, press freedom index in Indonesia declines to rank 100 of approximately 150 countries so surveyed. The threats to the press freedom come from, among others, articles of the Penal Code on insult and defamation. By the articles whose interpretation is highly subjective according to the expert, many journalists are threatened with police or judiciary interrogation and further brought to justice as if criminals;

o That, according to the expert, the articles in the Penal Code are elastic articles that hurt the ideal toward a democratic and just nation-state, moreover the Constitution 1945 guarantees and protects the freedom of receiving and giving information;

o That, according to the expert, the articles on insult and defamation may not be imposed on any journalist performing their journalistic tasks. As long as the news is in the public interest domain, the journalists and media disseminating the news shall be protected.

 

[3.11.4] The Petitioner’s Expert, Atmakusumah Astraatmadja

The expert Atmakusumah Astraatmadja, in a hearing on July 23, 2008, stated:

o That, according to the expert, considering the democratic development, it is considered improper, even unreasonable, to pass impose a high imprisonment and penalty on those creating creative works, such as journalistic works, opinions, or expressions or press freedom being an integral part of freedom of expression and expression of opinions;

o That, according to the witness, the imposition of a high imprisonment or penalty on journalists due to their journalistic works demonstrators, speakers in discussions does not comply with the international standard on freedom of expression and expression of opinions. Therefore, some countries have eliminated the criminal provisions on defamation, insult, slander, and false news, on the following grounds: (i) they are factually hardly proven as they are frequently opinions, not statement of the fact; (ii) their nature highly depends on the subjective feeling and opinion; (iii) thereby being multi-interpretable; (iv) not resulting in a permanent damage. In case of journalistic works, ”the temporary loss” due to press news can always be improved by a soon improvement, such as clarification, confirmation, correction, right of correction, and right of answer;

o That, according to the expert, some countries require that the elimination of criminal provisions also apply to the press as long the journalistic works are made in a good faith and in the public interest. Some countries amend the criminal provisions to civil provisions with proportional penalty for: (i) not complicating the life or bankrupting a company; (ii) for not putting the fear of expression or expression of conviction and attitude;

o That, according to the expert, it is about the time form Asian Court of Human Rights, if appeal procedures are not effective to guarantee the freedom of expression, including the freedom of press and freedom of expression of opinions considering the frequent imposition of penal and civil sanction in the form of a high compensation on a journalistic work;

o That, according to the expert, historically, theoretically, and factually, it proves that articles containing threats of penal to any actions considered to insult the Government are anti democracy and used by the Government of Indonesia to kill the social criticism and control. 

 

[3.11.5] The Petitioner’s Expert, Nono Anwar Makarim

The Expert Nono Anwar Makarim, in a hearing on July 23, 2008, stated:

o That, according to the expert, insult and defamation crimes originated from the 13th century in England intended to maintain the public order, where a harmed person considers that he/she has to challenge the insulter thereby resulting in a disturbance. Therefore, in 1275, a provision called scandalum magnatum in Statute of Wesminster was stipulated to recover the reputation on amicable basis;

 

o That, according to the witness, such a provision does not match the condition in this 21st century, where people like to demand for compensation in case of defamation. There is systematic anomaly if an action resulting in privaatrechtelijk should find the terms and characteristics thereof in a collection of the applicable legislation on publiekrechtelijk basis;

 

o That, according to the witness, defamation is a criminal act that can only be intended to individuals. Criminal act in articles on defamation in the Penal Code is included in a complaint delict and law of complaint is basically an individual law. While, Articles 207 and 208 of the Penal Code threat anyone insulting the competent agency or the public authority in Indonesia with imprisonment;

 

o That, according to the expert, Articles 207 and 208 of the Penal Code ignore the aim and objective of the legislator to limit the victim of defamation only to individuals. Articles 207 and 208 of the Penal Code are deliberately made not to give an opportunity to the accused to prove the correctness of accusation in the defamation;

 

o That, according to the witness, Articles 207 and 208 of the Penal Code are the colonial exception to the applicable principle of concordance to the Netherlands and its colonies;

 

o That, according to the expert, Articles 207 and 208 of the Penal Code violate the principle of people’s sovereign, namely the official and government status is obtained fully to the people sovereign right, therefore they should be transparent and abide by the people’s criticism.

 

[3.11.6] The Petitioners’ Expert, Yenti Garnasih

The expert Yenti Garnasih, in a hearing on July 23, 2008, stated:

o That, according to the expert, in accordance with ultimum remedium allegation, penal code is the final tool for determining which actions that should be criminalized. There are some requirements to determine which action to criminalize, among others, the action is disgraceful, harms and has a social admission, as well as there is an agreement to criminalize. Thing to consider is there should be no over criminalization;

 

o That, according to the expert, quoting Hoenagels’ opinion, it is important to consider various factors in making a criminalization to maintain ultimum remedium allegation and avoid over criminalization, namely: (a) not using a penal code emotionally; (b) not using a penal code to condemn any action whose victim or loss is not obvious; (c) not using a penal code if the loss resulting from the condemnation will be higher than that by a criminal act to formulate; (d) not using a criminal act if not strongly supported by the community; (e) not using a penal code if it is predicted that the use will not be effective; (f) a penal code in certain matters should specifically consider the control interest priority scale; and (g) a penal code as the repressive media should be used simultaneously with preventive media.

 

      o That, in relation to the violation of the prestige or defamation, the expert is of the opinion that, the future control should make a comparative study involving, among others, legal sociologists and criminologists. So that, if an action is considered minor, the profit and loss to condemn a person should be thought over, and if severe, the community’s interest so threatened should be thought over namely the clogged channel of freedom of expression of opinion.

 

[3.11.7] The Petitioners’ Expert, Toby Mendel

The expert Toby Mendel, in a hearing on July 23, 2008, stated:

o That, according to the expert, the resolution of the United Nations in a General Session of the United Nations in 1946 discussed the significance of freedom of expression of opinion as the aspect of democracy and has been strengthened by the International Court and all regional courts of human rights  throughout the world. The reasons are: (a) freedom of expression of opinion is the basis of democracy; (b) freedom of expression of opinion can serve as a tool for eradicating corruption; (c) freedom of expression of opinion can improve the accountability; (d) freedom of expression of opinion is the best way to find the truth.

 

o That, however, according to the expert, the freedom of expression of opinion is not absolute in nature but can be limited on the grounds for securing the rights of any other people, securing the national security, and securing the public order. To make the limitation legitimate, (a) the limitation is stipulated in law, (b) the limitation should have legitimate purposes. In relation to the limitation, the expert is also of the opinion that, firstly, the limitation of freedom of expression of opinion should be carefully planned to focus on protection of attainment of legitimate purposes; secondly, the limitation may not be too wide; thirdly, the limitation should be proportional;

 

o That, the current imposition of penal on defamation, according to the expert, is irrelevant to the preliminary reasons (the 13th and 14th centuries), that defamation was insulting in nature, while currently no more statement is insulting in nature because each country through various laws has effectively protected the public order. Currently, many countries rely on civil sanction for defamation;

 

o That, the expert does not see the relationship of defamation with public order. Even though, defamation indeed makes problem in the community, but according to the expert, it should not be handled extremely with imprisonment but with civil law;

 

o That, the expert acknowledges that each country has the different culture thereby having the different opinion in evaluating a reputation.

 

Sometimes, a statement is considered to ruin a reputation in a country but not in any other countries. But, the expert is of the opinion that, the difference of culture is insignificant or less significant in relation to the application of penal for defamation.

 

[3.11.8] The Petitioners’ Expert, Ifdhal Kasim

BY his written statement, the expert Ifdhal Kasim stated:

 

o That, according to the expert, the freedom of expression is guaranteed by the Constitution 1945, namely Article 28E paragraph (2), and has received the universal acknowledgment, as indicated in Article 19 of Universal Declaration of Human Rights (UDHR) and Article 19 paragraph (2) International Covenant on Civil and Political Rights (ICCPR);

 

o That, according to the expert, in addition to guaranteeing the freedom of expression, Law on human rights also guarantees the individual rights to honour or reputation, categorized as the privacy rights, that should also receive an equal protection to any other privacy rights;

 

o That, according to the expert, one of the forms of the state protection to the rights of honour or reputation is by containing the same in its national penal code, namely by making the crimes against integrity of person, such as defamation, slander, insult or libel. Almost all democratic countries have made the crimes against such actions, intending to protect the integrity of person;

 

o that, according to the witness, Indonesian national law, namely Article 28G paragraph (1) of the Constitution 1945 also protects the rights to honour and reputation. Law Number 39 Of 1999 on Human Rights, Article 29 paragraph (1) likewise. Further, the crimes against the rights have been contained in the national penal code, among others Articles 310, Article 311, Article 326, and Article 207 of the Penal Code. But, the protection to the rights to honour and reputation should also relate to the existence of the other rights, right to freedom of speech, freedom of expression), and freedom of the press that should also be protected by the state. The crimes against the honour and reputation should not become the effective weapon to encounter the freedom of speech and freedom of the press. But, currently, according to the expert, many countries increasingly leave behind the criminal act attacking the reputation and honour, it means the countries have written off defamation, slander, insult, false news as a criminal acts in their penal code;

 

o That, according to the expert, because the rights to freedom of expression correlate to the rights to honour or reputation that should jointly be guaranteed by the state, the state can reduce or limit the both rights, but the reduction or limitation shall be (i) prescribed by law; (ii) based on public order; (iii) moral and public health; (iv) national security; (v) public safety; (vi) rights and freedoms of others; (vii) rights and reputation of others; and (viii) necessary in a democratic society. Such principles of limitation are also adopted by the Constitution 1945, Article 28J;

o That, according to the expert, defamation and insult delicts in Penal Code are formulated too wide and not proportional to the resulting loss and the law imposed on the violator. Therefore, it is the time for Indonesia to review the writing off of imprisonment sanction to those committing insult or defamation criminal acts.

 

[3.12] Considering, that the Supreme Court has also heard the statements of the Parties Related To Independent Journalist Alliance (AJI), Indonesian Journalist Association (PWI), and Press Board principally indicating as follows:

 

[3.12.1] Statement of AJI-Related Parties

 

Independent Journalist Alliance (AJI)-Related Parties stated:

 

• That, according to AJI, freedom of expression and freedom of expression of opinion, orally and in writing, are basically the rights of each national protected by the constitution as contained in Article 28E paragraph (2), Article 28E paragraph (3) and Article 28F, Article 28I of the Second Amendment to the Constitution 1945; Article 19, Article 20 and Article 21 of the Decision of the People Deliberative Assembly of the Republic of Indonesia Number XVII/MPR/1998 on Human Rights; Article 14, Article 23 paragraph (2) and Article 5 of Law on Human Rights; Article 1 juncto Article 4 paragraph (1) of Law on Press; and Article 19 paragraphs (1) and paragraph (2) of International Covenant on Civil and Political Rights ratified by virtue of Law Number 12 Of 2005; Article 14, Article 23 paragraph (2) and Article 25 of law Number 39 Of 1999 on Human Rights;

• That, according to AJI, in the last several years, there is a tendency to stifle the press and bankrupt the media institution by the public officials and businessmen feeling that they are harmed by the press through legal suits before the court of justice by using Article 310 paragraph (1), Article 310 paragraph (2) Article 311 paragraph (1), Article 316, and Article 207 of the Penal Code;

• That, according to AJI, the imposition of sanction on suits for defamation as suffered by journalists and media, is basically a violation of freedom of expression, freedom of expression of opinion, orally and in writing, being the rights of every citizens protected by the constitution. The imposition of condemnation sanction to suits for defamation on the others citizens is also a violation to the constitution. Because freedom of expression  and freedom of expression of opinion are the social control of citizens and the realization of democracy, the imposition of imprisonment as referred to in Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code has limited the constitutional rights or authorities and contravened the constitution and principles of a democratic constitutional state holding high the human rights, as instructed by the Constitution 1945;

• That, according to AJI, the penal in Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code and the granting of special rights to the Indonesian ruler or corporate body, as contained in Article 316 and Article 207 of the Penal Code, are the forms of violation of freedom of expression and freedom of expression of opinion being the constitutional rights of each citizen protected by the constitution.

 

[3.12.2] Statement of the PWI-related parties

 

Indonesian Journalist Association (PWI)-Related Parties principally stated:

 

• That, the complaints to or suits against or involvement of the national journalists in legal problems are not irrespective of dysfunctional Press Board. Whereas, if the Press Board maximally implements its functions, as explained in Article 15 paragraph (2) of Law Number 40 Of 1999 on Press, PWI is convinced that the national journalists and press should not be afraid of any punishment threat;

• That, according to PWI, currently Press Board seems to only defend the national journalists and press without making an analysis to develop the life of the press. In this case, the Press Board should be neutral, not side with national journalists or press and the Government;

• That, based on PWI’s current observation, many violations of the press are not irrespective of the shares of the Press Board that are not right to the target. The heaven wind of the Press Board has made the national journalists and press fall asleep and feel that they are special;

• That, according to PWI, concerning the petition for reviewing Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1), Article 316, and Article 207 paragraph (1) of the Penal Code against the Constitution 1945 instituted by the Petitioners is highly exaggerating. On the contrary, according to PWI, the articles even guarantee the implementation of Article 28E paragraphs (2), (3) and Article 28F of the Constitution 1945;

• That, according to PWI, it is not precise if the Petitioners as the journalists question the articles in the Penal Code because the articles so questioned are intended not only to the journalists or press but also to all. The Petitioners should, in fighting for legal protection to their professions, properly understand the applicable law and propose the improvement of Law on Press through a precise institution not only through the certain press organization or group;

•  That, concerning the articles in the Penal Code that are inappropriate to the current condition, the Government and the House of People’s Representative certainly have the intention to revise the same. Here, the press men or press organizations should struggle and they should be those who understand the law correctly. Concerning the punishment imposed on the Petitioners or the journalists by using the articles in the Penal Code and not Law on Press, PWI is of the opinion that, it is the different matter. The press organizations should properly move jointly not severally as if they want to be heroes to fight for their rights. Press Organizations should sit together to discuss the matter pertaining to legal protection to the national journalists and press;

 

[3.12.3] Statement of Press Board-Related Parties

Press Board, in a hearing on July 23, 2008 and the witness’ statement, as completely contained in the section of Casus Positio of this Judgment, stated:

o That, the rights to express the opinion and the rights to protection of honour are two constitutional rights of Indonesian Nationals guaranteed by the Constitution 1945. if they both collide each others, the Press Board does not answer the question but only refers to Article 28J paragraph (2) of the Constitution 1945, and states that law stipulating the limitation of human rights can not be prepared arbitrarily, but should reflect the applicable norms in a democratic society;

o That, the threat of imprisonment as referred to in the Article 310 paragraph (1), Article 310 paragraph (2), Article 311 paragraph (1) of the Penal Code has resulted in an exaggerating fear and the impact is the community will not receive the information from various ideas and points of view because many people are afraid and would not take the risk of imprisonment due to expression of their thoughts and opinion;

 

[3.12.4] Statement of IJTI-Related Parties

Indonesian Television Journalists Association (IJTI), in a hearing on July 23, 2008, stated as follows:

o That, IJTI admits that Articles 310 and 311 of the Penal Code are not only for the press. But, those who are mostly affected with the same are the journalists and they make the journalists afraid of performing their tasks to collect information and disseminate the same to the public;

o That, in performing their tasks as journalists, any mistake or criticism to any harming things is considered as an insult, therefore there is no democratic world. If such a condition continues, the public rights to express their opinion will be revoked;

o That, imprisonment to the journalists not only kills the journalists but also harms the public interest which will eventually damage the democracy.

[3.13] Considering, that, the Court has asked the statement of the Penal Code Draft Preparing Team, in a hearing on June 24, 2008, principally stating as follows:

o That, the articles containing insult criminal act are intended to protect the honour and reputation of person and motivate each person to respect or treat the others with respect in accordance with human prestige and dignity as honour and reputation of person are also guaranteed by Article 28G of the Constitution 1945. Therefore, in the current context, insult criminal act formulation in Penal Code is the form of Penal Code protection to the constitutional rights of each person as the part of human rights guaranteed by the constitution;

o That, criticizing a person and insulting should be differentiated. Insult is a criminal act action for being a deliberateness to attack the honour or reputation of person preceded with criminal intent to make the honour and reputation of the person attacked. If a criticism is preceded, accompanied, or followed with insulting action, thing that is condemned is not the criticising act not the insulting act;

o That, the relationship of norms formulating prohibited actions and penal is inseparable. Therefore, only discussing the penal without connecting the same to its norms of prohibition is incorrect. Norms of prohibition relate to criminalization policies further followed with penalization with the lowest or heaviest penal threat. While penalization policies relate to imposition of penal, particularly imprisonment, certain acts considered as illegal in another branch of law become Illegal acts in a penal code and will be subject to penal sanction. Therefore, reviewing penal sanction threat without reviewing the norms of prohibition is incorrect according to penal code because penal sanction relates to and is not irrespective of the substance of the norms of prohibition, while penal sanction in articles relates to the weight of evaluation of criminal act formulated in the relevant articles. If the threat of penal sanction is eliminated while penal code norms or prohibition from committing actions in the articles remain existing, a person committing a criminal act shall not be subject to penal sanction or any sanction;

o That, in relation to the press, as contained in Law Number 40 Of 1999 on Press, it can be explained that:

i.   Law on Press serves as an administrative law stipulating the field of press;

ii. Criminal acts contained in Law on Press include administration criminal act in the field of press (Article 18 of Law Number 40 Of 1999);

iii. Law of Press is not included as a special penal code that can contain any criminal provisions deviating from the general norms of material penal code and formal penal code (lex specialis) or are given more priority to the general norms of material penal code and/or formal penal code. Therefore, the principle of ”specific penal code defeating the general penal code” does not apply to Law on Press;

o That, the formulation of the norms in Articles 310, 311, 316, and 207 of the Penal Code, KUHP, concerning the norms and the threat of penal sanction, is not specifically intended to the press or persons who perform their profession as the journalists, unless fulfilling the following requirements:

a.violating the code of ethics and/or standard of profession turning to against penal code, administration penal code, or general penal code;

b.violating the administration law on press that can move the penal code, be against the administration penal code, or the general penal code;

 c. violating the general penal code by falsifying their profession in the field of press;

o That, if the petition is granted, it will precisely result in  a general prevention of each person, as stipulated in Article 28D paragraph (1) of the Constitution 1945. because if in the future a person deliberately committing defamation, insult, and slander, the person is penalized  or the action becomes an allowed or unprohibited action;

[3.14] Considering that the Government has given the written statement whose content is basically the same as the statement given by the Penal Code Draft Preparing Team as described in the above paragraph [3.13];

[3.15] Considering that the Court has also heard the statements of the experts presented by the Government as follows:

[3.15.1] The Government’s Expert, Dr. Mudzakkir, S.H., M.H.

The Government’s Expert, Dr. Mudzakkir, S.H., M.H., whose complete statement is contained in the section of Casus Positio of this judgment, in a hearing on July 23, 2008, stated as follows:

o That, penal code norms as the part of the Indonesian national legal system is hierarchical, uniting, comprehensive in nature and has values thereby forming inseparable norm system or value system. The peak of the norm system is the constitution 1945 being the sources of material in forming the legislation, also serving as the basic norms uniting the Indonesian national legal norms, including penal code norms. Therefore, it is not justified to review the constitution of the state of the Republic of Indonesia based on the constitution of any other country because each country has their own national legal characteristics matching their legal community characteristics;

o That, legal norms in a penal code are differentiated into two, namely norms formulating any prohibited acts frequently called criminal act norms, and penalizing norms. The constitutional review in the field of Penal Code should only concern the norms and materials that can be tested should be provisions of law containing penal code norms, namely criminal act norms and penalizing norms or both of them;

o That, the general definition of insult is the attack to the honour and reputation of person, while the specific characteristics of insult or the forms thereof are: vilification [Article 310 paragraph (1) of Penal Code], written vilification [Article 310 paragraph (2) of Penal Code], slander [Article 311 of Penal Code], minor insult [Article 315 of Penal Code], slander complaint [Article 317 of Penal Code], false presupposition [Article 318 of Penal Code], and insult to the late [Articles 320-321 of Penal Code]. So, values to protect or strengthen by articles on insult as contained in Book II Chapter XVI of Penal Code are honour and reputation of person in the year of the public;

o That, honour and reputation are the part of human rights protected by Article 28G of the Constitution 1945 because even though the definition thereof can be differentiated but they are both an integral part, so that it is sufficient that a person commits an insult criminal act if he/she attacks one of them;

o That, the actions to attack the honour and reputation of the public officials are not measured from personal feeling of the relevant officials but from the public (objective) feeling whether or not the actions are included in actions attacking the honour or reputation. Here, the police, prosecutors, and judges should have the sensitivity to maintain the ethics (moral) in the life of a nation by interpreting the articles in the complaint delict. Controlling the state organizers is the part of democratic life guaranteed by law, but the right to control should be made fairly, proportionally, and take into account the legal norms, ethics, and any other norms. On the contrary, criticism to the public officials is usually directed to their deeds as the public officials not to themselves as individuals. Therefore, even though the criticism harms themselves as individuals, they should not complain the same to the police as individuals by acting on behalf of their positions;

o That, penal code protects the honour and reputation of person whatever the status is, and the honour of public officials or the state organizers by prohibiting from committing insult, in any form, attacking their honour and reputation. Therefore, according to the expert, penal code norms containing insult criminal act, stipulated in Book II Chapter XVI of Penal Code, are in line with and constitute the implementation of any further arrangement of the norms of human rights contained in the Constitution 1945, particularly Article 28G, and Law Number 39 Of 1999 on Human Rights, so that the elimination of Penal Code norms of insult in Penal Code does not comply with and contravenes the legal values and norms to maintain the Constitution;

o That, penal code is not directed to certain persons or those performing certain professions. If it is directed to certain legal subject, penal code norms specifically mention the same, because the criminal act can substantively only be committed by certain persons or those related to certain professions. Such a provision is the exception of the formulation of Penal Code in general. Penal code norms stipulating an insult delict in Articles 310, 311, 316, and 207 of Penal Code are not specifically directed to those having the profession of journalists, as long as they are proven to be against the law and fulfil the elements of criminal acts;

o That, penal code and penal sanction to the other legal norms are functioned to push or compel the adherence to the other legal norms. Therefore, penal code norms should relate to the other norms in the national legal system. Penal code norms do not mean to be legal norms without being connected to the other norms;

o That, the review of materials of prohibited actions or criminal acts contained in Penal Code should be interpreted as an integral part of the principle to prohibit an act, even as the part of the national legal system, and connected to penal code system and the national legal system on the whole. Therefore, the understanding one article in a penal code should be interpreted according to the values, principles, and the legal interest to protect through the articles:

1. matching the legal interests to protect in paragraphs, sections, and chapters in Penal Code; and

2. the legal interests and legal values to protect and maintain through the other non penal code fields or branches in Indonesian national legal system.

 

[3.15.2] The Government’s Expert, Djafar Husin Assegaff

The expert Djafar Husin Assegaff, in a hearing on July 23, 2008 stated:

o That, according to the expert, Article 310 paragraphs (1) and (2), Article 311 paragraph (1), Article 316, and Article 207 of Penal Code should remain maintained as they guarantee the honour and reputation of each community member from the news in mass media, holding high the fact and truth in journalistic work, and maintaining the honour and reputation of community member. The articles have to be respected by each journalist. Journalists should know the applicable legal system in their places of work and the social regulations therein;

o That, according to the expert, journalists should be careful to release the news in case of reputation of person. Defamation is a disgraceful action and out of the high journalistic values. Journalistic work reveals ”the truth” based on the tested ”facts”. Reporters find the news, write and submit the same to editor for examination whether or not it is worth disseminating, if it is worth disseminating, the editor should edit the news to: (i) avoid any mistake in fact or unreasonable fact, (ii) prevent from lingual errors, (iii) prevent from not resulting in what is called libelous sentences or paragraph. If the news results in a problem, he is brought to the a meeting with Editorial Manager or Executive Editor so as not to harm the reputation of person, humiliate or make fun of the person, or harm the reputation damaging his business or profession;

o That, according to the expert, media is a power, even the fourth and fifth powers (for broadcasting media) so that it could be misused. Therefore, ombudsmen media protects the media from not deviating and sentencing the same in case of mistake or violation of the ethics to hold high the law and rules of game and maintain human prestige and dignity. In the last section of his statement, the expert also quoted A.P. Manual for Libel in America that, “the publication of libel may result in what is considered a breach of peace. For that reason, it may constitute a criminal offence”.

[3.16] Considering that the Court received the statement ad informandum presented by Indonesian Legal Assistance Association (PBHI) and Indonesian Movement principally supporting the petition a quo. In addition, the Court also received the statement of the parties late received with the Registrar’s Office of the Court so that the Court should not necessarily consider the same;

[3.17] Considering that the Court has read the conclusion of the Petitioners received with the Registrar’s Office on August 7, 2008 principally stating that the Petitioners remain with their petition.

The Court’s Opinion

[3.18] Considering that after hearing the statement of the parties as described in the paragraphs [3.11] through [3.15], the Court further pronounced its conviction of the Petitioner’s petition. But, because the norms of constitution of which the review is petitioned is the norms of Penal Code, in casu Penal Code, particularly those stipulating or relating to the honour and reputation of person, before specifically pronouncing its conviction of the Petitioners’ allegations, the Court consider necessary to first of all pronounce its opinion on what legal interests generally protected by penal code and specifically relating to the prestige and dignity of person;

 [3.19] Considering, according to the legal doctrines generally acceptable in penal code, that the general characteristic of criminal act or delict is an action violating the norms in such a way thereby rapping the legal interests of others or endangering the interests of others. In the meantime, three legal interests are protected by penal code namely individual interest, society’s interest, and the state’s interest. In case of individual legal interest, those protected or guaranteed by penal code anywhere, including those in Penal Code, can be in the form of life (leven), body (lijt), freedom (vrijheid), and property (vermogen). In the further development, outside the four things, honour (eer) also become the legal interest protected by penal code because each human being has honour so that they are guaranteed that their honour will not be rapped or violated. The right to protection to the honour becomes the object of insult criminal act (de mens heeft het recht dat zijn eer niet zal worden gekrenkt);

[3.20] Considering that in line with the description in the above paragraph [3.19], Article 28G of the Constitution 1945 also explictly acknowledges that honour and prestige are the constitutional rights and protected by the constitution. Article 28G paragraph (1) of the Constitution 1945 reads, “Each person is entitled to protection to their own, family, honour, prestige, and property in their control, and entitled to safety and protection from the threat of fear of making or not making anything being the rights”. While paragraph (2) affirms that, “each person is entitled to be free from any torture or treatment humiliating the human prestige and entitled to obtain political asylum from another country”;

[3.21] Considering, as the proof that the general principles in penal code and the constitutional provisions stipulating the guarantee and protection to honour of an individual are the universally applicable legal norms, they have been contained in Article 12 of Universal Declaration of Human Rights (UDHR) and Article 17 of International Covenant on Civil and Political Rights (ICCPR), reading:

Article 12 of UDHR

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 17 ICCPR

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

2.Everyone has the right to the protection of the law against such interference or attacks.

[3.22] Considering that therefore, the national law and international law guarantee the rights of each person to honour and reputation.

Therefore, the use of freedom or the rights of each person can not be used in such a way without any limitation thereby attacking the honour and reputation of others for contravening not only the Constitution 1945 but also the international law;

[3.23] Considering, after considering anything relating to the legal interests protected by penal code and the rights to honour and prestige as the constitutional rights, the Court further consider necessary to remind the important things as follows:

[3.23.1] That, the constitutional review and problems occurring from the application of a norm of law in some countries (for example, Germany or South Korea) should be differentiated and included in the scope of constitutional complaint whose competence to hear is also given by constitutional court. In case of constitutional review, what is questioned is whether or not a norm of law contravenes wit the constitution, and what is questioned in constitutional complaint is whether or not an action of a public official (or absence of action of a public official) violates the basic rights of person, that can occur among others because the relevant public official is mistaken in interpreting the norm of law in his application. But, pursuant to Article 24C paragraph (1) of the Constitution 1945, the Court is explicitly only declared that it is competent to hear, try and judge the constitutional review, while the Constitution 1945  does not stipulate the constitutional complaint to date;

[3.23.2] That, having accurately read the Petitioners’ petition and statement in the hearing, what is questioned by the Petitioners is actually the constitutional complaint that the judicial review or the constitutional review. But, because the matter has been instituted as the petition for reviewing the law against the Constitution 1945 on the allegations that the provisions in Penal Code contravene the articles of the Constitution 1945, the Court should hear, try, and judge the same;

 [3.24] Considering that the Petitioner I alleges that Article 310 paragraphs (1) and (2), and Article 311 paragraph (1) of Penal Code violate Articles 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 because according to the Petitioners, provisions on imprisonment sanction to vilification, written vilification, and slander contravene the Constitution 1945, namely:

a. vilification, namely an action deliberately attacking the honour and reputation of person, by accusing of committing a thing, for people cognisance [Article 310 paragraph (1) of Penal Code];

b. written vilification, namely a vilification by article or picture broadcasted, showed or stuck before the public [Article 310 paragraph of Penal Code];

c. slander, namely the correctness of actions as contained in Article 310 paragraphs (1) and (2) of Penal Code can not be proven by the actor [Article 311 paragraph (1) of Penal Code].

 

According to the Petitioner I, imprisonment sanction to provisions of the three criminal acts violates the freedom of expression of opinion and attitude conscientiously [Article 28E paragraph (2) of the Constitution 1945]; freedom of expression of opinion [Article 28E paragraph (3) of the Constitution 1945; and freedom of communication [Article 28F of the Constitution 1945]. Points of argumentation of the Petitioner I are:

- That, freedom of expression of thoughts and opinions, freedom of expression, and freedom of the press are guaranteed by Article 28E paragraphs (2) and (3) as well as Article 28F of the Constitution 1945; Article 14, Articles 19, 20, 21 of the Decision of People Deliberative Assembly Number XVII/MPR/1998; Articles 14, 23 paragraph (2), and Article 25 of Law on Human Rights; by Article 19 paragraphs (1) (2) of ICCPR;

- That, insult delict is frequently imposed on Indonesian nationals using their constitutional rights to express their opinions and thoughts orally and in writing and make activities to disseminate the information;

- That, delict formulation as stipulated in Article 310 paragraph (1) of Penal Code is easily used by those not liking the freedom of expression of opinions and thoughts, freedom of expression and freedom of the press;

- That, delict formulation in Article 311 paragraph (1) and Article 310 of Penal Code is not the formulation expressly adopting lex certa principle thereby being able to result in legal uncertainty and vulnerable to unilateral interpretation whether or not an expression of opinion or thought is criticism or defamation and/or slander, therefore a punishment in the form of imprisonment is highly exaggerating and can disturb the constitutional rights as guaranteed by Articles 28E paragraphs (2) and (3) of the Constitution 1945;

- That, the use of sentences or words in expressing opinions and/or thoughts orally and in writing will always develop. Therefore, it is highly possible that sentences or words considered to insult in the past are not considered to insult in the present, and sentences considered to insult in the present are not considered to insult in the future likewise;

- That, the effectiveness of imprisonment as referred to in the Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) of Penal Code has legally lost its relevance and raison d’etre in a democratic country if encountered with Article V of Law Number 1 Of 1946 on the Penal Code Regulation;

- That, no one or group, including the Government, may interpret the human rights guaranteed by the Constitution 1945 in such a way in any form of business or action intended to eliminate the rights or freedom already guaranteed by the Constitution. Therefore, the imprisonment as referred to in Article 310 paragraph (1), Article 310 paragraph (2), and Article 311 paragraph (1) has become the tool for limiting the constitutional rights and/or authorities and contravenes the constitution so that it has to be eliminated.

 

Concerning the Petitioner I’s allegation, the Court is of the opinion that, if what is meant by the Petitioner I by his allegations is the existence of the Petitioner I’s presumption that the articles in the Penal Code of which the review is petitioned eliminate the rights to freedom of expression of opinion and attitude conscientiously, rights to express opinions, and rights to be free to communicate, therefore according to the Court, such a presumption is not right. The constitution guarantees the rights and therefore the state should protect the same. But, at the same time, the state should also protect the other constitutional rights whose degree is the same as the rights, namely the rights of each person to honour and reputation, as stipulated in Article 28G of the Constitution 1945 reading,

 

(1) Each person is entitled to protection to their own, family, honour, prestige, and property in their control, and entitled to safety and protection from the threat of fear of making or not making anything being the rights;

 (2)  Each person is entitled to be free from any torture or treatment humiliating the human prestige and entitled to obtain political asylum from another country.

Because of the obligations to protect the constitutional rights, in casu the rights to honour and prestige, the state is justified to limit the rights to freedom to express opinion and attitude conscientiously, the rights to express opinions and be free to communicate, as explicitly contained in Article 28J paragraph (2) of the Constitution 1945 reading, “In implementing their rights and freedoms, each person shall adhere to the limitation stipulated by law solely intended to guarantee the acknowledgment and respect to the rights and freedoms of others and fulfil fair demands considering the moral, religious values, security, and public order in a democratic society”. Even, without the Article 28J paragraph (2) of the Constitution 1945 those owing the rights to the freedoms should have realized that each right will always have obligations, at least those not to misuse the rights. Therefore, Article 28J paragraph (1) of the Constitution 1945 affirms, “Each person shall respect the human rights of others in the order of social and national life”. Moreover the rights with freedom substance, the awareness of limitation adhering to the rights is a must.

 

It is unimaginable that there will be an order in the social life, or even a mutual life called society, if each people uses their freedoms as they like. In this context, limitation of freedoms by law is a certainty. It is also justified by the Petitioners’ experts, namely Toby Mendel and Ifdhal Kasim. According to Tobby Mendel, freedom of express of opinions is not absolute but can be limited to guarantee the rights of others, the national life, and public order. In the meantime, the Expert Ifdhal Kasim in his written statement put forward eight principles that can be justified to make limitation, namely (i) prescribed by law; (ii) public order; (iii) moral and public health; (iv) national security; (v) public safety; (vi) rights and freedoms of others; (vii) rights and reputation of others; and (viii) necessary in a democratic society.

Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code are the realization of the limitation and the state obligations to protect and guarantee the honour of each constitutional right as asserted in the Constitution 1945. therefore, articles in the Penal Code do not contravene the Constitution 1945.

Concerning the argumentation of the Petitioner I that insult delict is frequently imposed on Indonesian nationals using their constitutional rights to express their opinions and thoughts orally and in writing and make activities to disseminate the information. In addition, the provision is easily misused by those not liking the freedom of expression of opinions and thoughts, freedom of expression and freedom of the press. It is the argumentation questioning the application of norms not questioning the constitutionality of norms. It is not true that the weakness or lack in the process of applying the norms is overcome by revoking the norms because penal code will never have the reasons and place to live in the society if we revoke the same anytime we are disappointed of the application of law norms, in casu penal code norms. Moreover, the biggest part of the cases made as examples by the Petitioners and the parties in the hearing relate to violations in law enforcement practices. The proper law enforcement is not yet entrenched in accordance with the ideals of a democratic constitutional state.

Further, if the Petitioner I questions the fact that sanction to those violating the limitation in some countries is no longer in the form of imprisonment, it does not make the imprisonment sanction in Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code immediately unconstitutional or contravene the Constitution 1945 because it has been the values adopted by a society considered proper, fair, correct, and others frequently different between one country and other ones. Even though, a mutually influencing relationship between one country and other ones concerning the ideas, principles, and tradition in the technological and communication advance in this global era, but the mutually influencing relationship does not eliminate the difference of context due to the local situational and conditional factors (situationgebundenheit).

Likewise, whether or not a penal sanction threatened to an action is proportional depends on the values adopted a society. The values will always change, develop and depend on the reference used by a society considered ideal. Something considered ideal will be reflected in legal politics further realized in the form of legislation. It is not possible for the Court to evaluate and review the constitutionality of political ideas not yet becoming legal products and then pronounce that they contravene the constitution. The Court is only competent to review the law norms as the realization of the political ideas, namely in the form of law. But to review whether or not a law norm is constitutional, the Court relies on not only the development or tendency occurring in the other countries but also their dynamics.

Moreover, provisions on insult and defamation criminal acts in the Penal Code of which the review is petitioned are quite proportional as they are formulated as complaint delict. By following the way of thinking of the Petitioner I himself, namely the words used for expressing the opinions always develop, the correctness of this argumentation will precisely be tested by two things. Firstly, whether or not in a certain development phase, words or sentences – both expressed orally and in writing – are still considered to insult, namely whether or not it is complained by a person considering that he is the victim of insult and defamation by the words or sentences. Secondly, whether or not the judges – after passing through the proof process in a hearing – agree with the complainer that the words or sentences indeed insult or defame. 

In addition, penal sanctions threatened in articles on insult and defamation in the Penal Code are alternative not cumulative in nature, so that if a person in a hearing is accused of being the actor of insult and defamation for defending the public interest and own interest, for example a journalist who reveals the attitude of a corruptor, it also depends on the evaluation of the judges hearing the case, whether or not – if he is proven to be guilty – he will be imprisoned or fined. It has been asserted in Article 310 paragraph (3) of Penal Code. The fact indicates that how incessant the news in printed or electronic media on those presumably committing corruption is, but those who complain for vilification of their honour and reputation are not significant that the incessant news on the corruptors. It simultaneously indicates that there has been a change of positive legal culture in the society, not only in the perspective of those active in media but also in the perspective of those reported in media.

Further, the Court is also of the opinion that the formulation of a law norm does not immediately lose its raison d’etre just because it is the legacy of colonial administration thereby contravening the essence of Indonesia as a free country and the Constitution 1945. For example, the previous judgment of the Court pronouncing that several articles of Penal Code contravene the Constitution 1945 and have no binding force of law, among others Article 134, Article 136 bis, and Article 137 of Penal Code (vide Judgment Number 013-022/PUU-IV/2006 dated December 6, 2006). The Court is also not competent to change the types of penal sanctions in Article 310 paragraphs (1) and (2), Article 311 paragraph (1) of Penal Code, as petitioned by the Petitioner in his petitum because it is the competence of the legislator through a legislative review. The petition a quo  is highly different from a case of review of Law Number 29 Of 2004 on Medical Practices where the Court pronounced that imprisonment sanction in Article 75 paragraph (1) and Article 1 76 as long as concerning the words “the maximum imprisonment of 3 (three) years or” and Article 79 as long as concerning the words “the maximum imprisonment of 1 (one) year or” as well as Article 79 point c as long as concerning the words “or point e” in Law on Medical Practices contravene the Constitution 1945. the Court’s Judgment is principally based on the ground that any violation threatened with imprisonment in the law is an administrative violation so that sanction to the violation can be imposed with penalty sanction, not imprisonment sanction as it is not proportional (vide Court’s judgment Number 4/PUU-V/2007 dated June 19, 2007). Moreover, in the case, law of which the review is petitioned is law whose scope only stipulates the medical practices not the general law as the Penal Code of which review is petitioned by the Petitioner.

[3.25] Considering, that the Petitioner II alleges that Articles 207 and 316 of Penal Code contravene Article 27 paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the Constitution 1945 because, according to the Petitioner II, the articles contravene the Constitution 1945, namely:

a. deliberately insulting a ruler o corporate body before the public, orally and in writing [Article 207 of Penal Code];

b. insulting officials performing their functions or due to performing their functions [Article 316 of Penal Code].

 

According to the Petitioner II, the both articles contravene:

1.the right to equal position before the law [Article 27 paragraph (1) of the Constitution 1945];

2.the right to freedom to belief, freedom to expression of opinion [Article 28E paragraph (2) of the Constitution 1945]; and 

3.the right to freedoms of unity, gathering, and expression of opinions [Article 28E paragraph (3) of the Constitution 1945].

 

Points of argumentation of the Petitioner II to support his allegations are:

- That, freedom of expression of thoughts and opinions, freedom of expression, and freedom of the press are guaranteed by Article 28E paragraphs (2) and (3) as well as Article 28F of the Constitution 1945; Article 14, Articles 19, 20, 21 of the Decision of People Deliberative Assembly Number XVII/MPR/1998; Articles 14, 23 paragraph (2), and Article 25 of Law on Human Rights; by Article 19 paragraphs (1) (2) of ICCPR;

- That, concerning the application of Article 207 of Penal Code, the Constitutional Court also expresses its opinion in a Judgment Number 013-022/PUU-IV/2006, “Prosecution to the violator of Article 207 of Penal Code by the state competent agency requires the adjustment in the future in line with Court’s consideration on Article 134, Article 136 bis, Article 137 of Penal Code”;

- That Articles 207 and 316 of Penal Code explicitly give protection and special treatment to state officials and apparatuses and remove the equality principle before the law as stipulated in Article 27 paragraph (1) of the Constitution 1945;

- That effectiveness of Articles 207 and 316 of Penal Code has seriously threatened the freedom of expression of thoughts and opinions, freedom of expression, and freedom of the press, as well as legal certainty;

- That Articles 207 and 316 of Penal Code have lost it relevance and raison d’etre in a democratic country if encountered with Article V of Law Number 1 Of 1946 on the Penal Code Regulation;

- That delict formulation in Article 310 paragraph (1), Article 316, Article 207 of Penal Code is not the formulation expressly adopting lex certa principle thereby being able to result in legal uncertainty and vulnerable to unilateral interpretation whether or not an expression of opinion or thought is criticism or defamation and/or slander, therefore a punishment in the form of imprisonment is highly exaggerating and can disturb the constitutional rights as guaranteed by Articles 28E paragraphs (2) and (3) of the Constitution 1945;

- that application of Article 207, Article 310 paragraph (1), and Article 316 of Penal Code can also result in legal uncertainty and be vulnerable to unilateral interpretation whether or not the submission of information is a criticism or defamation and/or slander thereby hampering the freedom of the press as guaranteed by Article 28F of the Constitution 1945;

-  That honour and reputation of person indeed remain maintained and respected as stipulated in Article 19 paragraph (3) of ICCPR (Law Number 12 Of 2005), but the use of protection by Articles 207 and 316 of Penal Code to states officials and apparatuses is exaggerating and arbitrary;

- That the development of freedom of expression of opinions and thoughts, freedom of expression and freedom of the press, particularly in democratic countries, has stepped forward so that it is inappropriate, even improper anymore, to pass an imprisonment sanction to those creating creative works, such as journalistic works, opinions, or expressions;

- That an opinion considering that expression of opinions, expressions and journalistic works as crimes that should be subject to imprisonment is no longer popular so that    it should not be maintained for not complying with the international standard on freedom of expression of opinions and thoughts, freedom of expression, and freedom of the press;

- That, if penalty sanction contained in Penal Code is considered insufficient, the rules on insult and defamation are also contained in Articles 1372 through 1379 of Civil Code, so that the prosecution to insult and defamation can be made in a mechanism in Civil Code.

 

Concerning the allegations of the Petitioner II, the Court is of the opinion that as long as the allegations of the Petitioner II are the same as those of the Petitioner I, as described in the paragraph [3.24], the Court’s consideration to the allegations of the Petitioner I also applies on mutatis mutandis basis to those of the Petitioner II. Further, concerning the allegations of the Petitioner II referring to a Judgment Number 013-022/PUU-IV/2006, to avoid misunderstanding, the Court should refer to legal consideration of the judgment concerning Article 207 of Penal Code as follows:

• That, therefore Articles 310 – 321 of Penal Code should apply to insult delict to the President and/or the Voce President if the insult is directed to his personal quality, and Article 207 of Penal Code in case the insult is directed to the President and/or Vice President as officials (als ambtsdrager);

• That in relation to the effectiveness of Article 207 of Penal Code to insult delict to the President and/or Vice President as the insult to the other ruler or public bodies (gestelde macht of openbaar lichaam), the prosecution shall be based on a complaint. In some countries, among others Japan, insult to the Emperor, Queen, Queen Grandmother, Queen Mother, or beneficiaries of empire can only be prosecuted based on a compliant. Article 232 (2) The Penal Code of Japan stipulates that the Prime Minister will make a complaint on behalf of the Emperor, Queen, Queen Grandmother,  Queen Mother to make a prosecution, and in case of insult to a king or president of a foreign country, the representative of the relevant country will make a complaint on his/her behalf. Prosecution to the violators of Article 207 of Penal Code by state apparatuses requires the adjustment in the future in line with the Court’s consideration on Article 134, Article 136 bis, and Article 137 of Penal Code;

 

Therefore, the Court’s opinion is obvious that Article 207 of Penal Code is unconstitutional. Where “state apparatuses requires the adjustment in the future in line with the Court’s consideration on Article 134, Article 136 bis, and Article 137 of Penal Code” means the adjustment through a legislative policy not through the constitutional review as understood by the Petitioner.

 

Concerning the Petitioner’s allegation that Articles 207 and 316 of Penal Code gives protection and special treatment to the state officials and remove the equality principle before the law, as long as concerning Article 207 of Penal Code, the Court’s consideration shall apply on mutatis mutandis basis. While concerning Article 316 of Penal Code, if the difference of legal treatment as meant by the Petitioner is the existence of penal aggravation (strafverhoging), the penal aggravation is not the difference of treatment but the constitutional logical consequence of Article 207 of Penal Code giving the separate protection to the state officials performing their tasks by law. The separate protection to the public officials performing their tasks is required due to the personal subjective elements of the officials and the objective elements of their institutions requiring the credibility, authority, and capacity for effective performance of their public tasks

[3.26] Considering, particular to the Petitioners’ allegations relating to freedom of the press, and taking into account the fact in the hearing, namely as if the articles in Penal Code of which the review is petitioned will shackle the freedom of the press, it is important for the Court to remind that provisions of which the review is petitioned in a petition a quo is the general penal code provisions applying not only to the press. Therefore, if penal provisions specifically applicable to the press or mass media in general is required, it should be specifically or separately formulated in Law on Press as lex specialis. As long as the law on press or mass media in general remains referring to Penal Code for criminal acts presumably committed by the press or mass media in general, it can not be said that there is a mistake in legal application if a prosecutor makes the Penal Code as a basis to pass its judgment. In other words, if a specific regulation on criminal acts presumably committed by the press or mass media in general is indeed required, it should be made as the part of penal law reform agenda to further realize through a legislative review. Likewise, if the application of penal code is considered inappropriate anymore in relation to the loss occurring from the news in press or mass media in general, but – for example – by sufficiently using a civil suit with liability based on fault, it can also be made through legislative review in accordance with penal code political direction to build.

4. CONCLUSION 

Based on all considerations to the factual and legal considerations as described above, the Court concludes:

[4.1] That, reputation, prestige, or honour of person is one of the legal interests protected by penal law for being a part of the constitutional rights citizens guaranteed by the Constitution 1945 and the international law, therefore if a penal code imposes a certain penal sanction to any actions attacking the reputation, prestige, or honour of person, it does not contravene the Constitution 1945;

[4.2] That, Petitioners’ petition actually questions the application of law norms not the constitutionality of law norms;

[4.3] That, therefore, the Petitioners’ allegations are groundless, so that the petition shall be denied.

5. DICTION OF JUDGMENT

By reminding Article 56 paragraph (5) of Law Number 24 Of 2003 on Constitutional Court (State Gazette of the Republic of Indonesia Of 2003 Number 98, Supplement to State Gazette of the Republic of Indonesia Number 4316), by virtue of the Constitution of the State of the Republic of Indonesia Of 1945,

Hearing,

Pronouncing the Petitioners’ petition to be denied;

Judged in a Deliberation Meeting of Judges in the presence of nine Constitutional Judges on Wednesday, the thirteenth day August two thousand eight, pronounced in a Plenary Session of the Constitutional Court open to the public on this day, Friday, the fifteenth day of August two thousand eight, by eight Constitutional Judges, namely H. Harjono, as the Chief Judge, H.A.S. Natabaya, Maruarar Siahaan, I Dewa Gede Palguna, H. Abdul Mukthie Fadjar, Moh. Mahfud MD, H.M. Arsyad Sanusi, and Muhammad Alim, as Members, accompanied by Sunardi as Substitute Registrar, as well as in the presence of the Petitioners/Proxies, House of People’s Representative or its representative, the Government or its representative, Independent Journalist Alliance-Related Parties, Press Board-Related Parties, Indonesian Journalist Association-Related Parties, and Indonesian Television Journalist Association-Related Parties.

 

CHIEF JUDGE,

signed.

H. Harjono