Comparative defamation law and practice - focus on Southeast Asia

Below are the opening paragraphs of a paper I gave to a conference in Hong Kong, in 2007, on comparative defamation law and practice - focusing on Southeast Asia. The full text can be downloaded by clicking here.

International and Southeast Asian law and practice on defamation

Hong Kong, 2007

Defamation is among the most litigated issues in media law. This is true domestically as well as internationally.[1] In South-east Asia, as elsewhere in the world, politicians and powerful business people often abuse the defamation laws in an attempt to silence their opponents and critics. In most South-east Asian countries, defamation can be prosecuted under both the criminal and the civil law. Both raise their own sets of specific issues, although civil liability is internationally thought to be the better solution.

This paper will outline international human rights law and best practice on defamation, and compare and contrast that with national practice.[2]

At the international level, a rich body of defamation case law has been established by international human rights courts. The European Court of Human Rights has been the most active. In the 21 years since that Court delivered its first judgment in a defamation case,[3] it has built up a considerable body of jurisprudence. Over the last decade or so, other international courts, including the United Nations Human Rights Committee and the Inter-American Court of Human Rights, have also begun to hear defamation cases and are building up a jurisprudence of their own. Given the similarity of the freedom of expression provisions in each of the treaties whose implementation these bodies oversee, the references they make to each other’s jurisprudence, and the fact that the bodies tend to follow each other in the substance of their decisions, it is appropriate to view their jurisprudence as a united body of law. This paper will review that body of law, under the following general headings:[4]

·         Freedom of expression protects offensive speech

·         The status of public figures and the importance of debate on matters of public interest

·         The distinction between opinion and fact

·         The defence of truth

·         The defence of ‘reasonable publication’

·         Penalties

We will also briefly consider procedural matters, including the question whether legal aid should be available to impecunious defendants and on the protection of journalists’ sources.

Finally, this paper touches on the question whether criminal defamation laws as such are compatible with the right to freedom of expression. International bodies such as the UN Special Rapporteur on Freedom of Opinion and Expression have long advised that criminal defamation laws are incompatible with the right to freedom of expression, and an important decision moving in this direction has been rendered by the Indonesian Constitutional Court. The implications of this judgment are important, not only in Indonesia but in the region.

I.     Freedom of Expression Protects Offensive Speech

Sources of international law on freedom of expression applicable in South-east Asia

The right to freedom of expression is guaranteed through various international treaties and declarations. The following paragraphs briefly review those instruments that are of specific relevance to the South-east Asian States targeted in the current training session.

Article 19 of the Universal Declaration on Human Rights (UDHR),[5] a United Nations General Assembly resolution, guarantees the right to freedom of expression in the following terms:

Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart informa­tion and ideas through any media and regardless of frontiers.

The UDHR is not directly binding on States but parts of it, including Article 19, have arguably acquired legal force as customary international law.[6] It has also been cited in various ASEAN documents,[7] and the majority of South-east Asian States took part in the 1993 Vienna World Conference on Human Rights that reaffirmed its full commitment to the UDHR.[8]

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[1]               The notable exception is Singapore, where between 2004 and 2006, less than 10 cases were officially reported. It seems, however, that many cases are settled out of court, possibly due to the harsh nature of the law and the limited chances of success of most media defendants.

[2]               Examples of national practice have been taken from the country reports submitted by national facilitators and resource material developers appointed for this training session. The author of this paper would like to express his thanks to these coordinators for sharing their work. 

[3]               Lingens v. Austria, 8 July 1986, Application No. 9815/82.

[4]               Where appropriate, we will also refer to the jurisprudence of leading national courts of final appeal.

[5]              UN General Assembly Resolution 217A(III), adopted 10 December 1948.

[6]               See, for example, Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain) (Second Phase), ICJ Rep. 1970 3 (International Court of Justice); Namibia Opinion, ICJ Rep. 1971 16, Separate Opinion, Judge Ammoun (International Court of Justice); Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2^nd Circuit). Generally, see M.S.McDougal, H.D.Lasswell, L.C.Chen, Human Rights and World Public Order, Yale University Press (1980), pp. 273-74, 325-27.

[7]               See, for example, the Ha Noi Plan of Action, adopted at the 6th ASEAN Summit 15-16 December 1998, Hanoi, Vietnam. Malaysia is a founding Member Country of ASEAN (Association of Southeast Asian Nations).

[8]               Report of the World Conference on Human Rights, UN Doc. No. A/CONF.157/24 (Part I), 13 October 1993. 

The case for Anti-SLAPP suits in Australia

Interesting blog post about the abuse of defamation laws in Australia, focusing on one case in which defamation laws were used to destroy a community campaign to preserve local woodland: http://brianwaltersmelbourne.blogspot.com/2010/07/slapping-on-writs.html

Namibian Supreme Court accepts defence of reasonable publication in defamation cases

The Supreme Court of Namibia has recently accepted the defence of reasonable publication for defamatory statements, following the South African Bogoshi decision, the Canadian decision in Grant, the UK’s Reynolds/Jameel approach and Australia’s Theophanous approach. The Court wrote:


“[53] … the development of a defence of reasonable or responsible publication of facts that are in the public interest as proposed by the respondent (and as accepted by the High Court) will provide greater protection to the right of freedom of speech and the media protected in section 21 without placing the constitutional precept of human dignity at risk. The effect of the defence is to require publishers of statements to be able to establish not that a particular fact is true, but that it is important and in the public interest that it be published, and that in all the circumstances it was reasonable and responsible to publish it.

[54] It is clear that this defence goes to unlawfulness so that a defendant who successfully establishes that publication was reasonable and in the public interest, will not have published a defamatory statement wrongfully or unlawfully. A further question arises, however, given the conclusion reached earlier that the principle of strict liability established in Pakendorf was repugnant to the Constitution. That question is what the fault requirement is in defamation actions against the mass media. The original principle of the common law is that the fault requirement in the actio injuriarum is intentional harm not negligence, although there are exceptions to this rule. Distributors of defamatory material are liable if it is shown that they acted negligently.

[55] In Bogoshi, the South African Supreme Court of Appeal held that the media will be liable for the publication of defamatory statements unless they establish that they are not negligent. This approach is consistent with the establishment of a defence of reasonable publication and should be adopted. …

[56] The defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest. It will result in responsible journalistic practices that avoid reckless and careless damage to the reputations of individuals. In so doing, the defence creates a balance between the important constitutional rights of freedom of speech and the media and the constitutional precept of dignity."


See here for the full text: http://inforrm.wordpress.com/2010/07/10/case-law-trustco-international-v-shikongo-supreme-court-of-namibia/

It should also eventually be listed here: http://www.saflii.org/na/cases/NASC/

English Court of Appeal blasts a path for free speech

The eagerly awaited appeal judgment in BCA v. Singh was published today. It's quite a bombshell (in a good way!) - it cites Milton, refers to classic ECHR Article 10 standards, gives Orwell a nod, adopts a marketplace of ideas philosophy and concludes by proposing a bit of a rethink around the defence of fair comment.

The Lord Chief Justice is playing a blinder here.

On opinion, he says:

"The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again."

He goes on to say the following, about the nature of "evidence" (in the scientific sense - the case concerned allegations whether or not chiropractic works):

"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be."

He then goes on to adopt a US marketplace of ideas standard:

"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.""

And he concludes that the entire common law concept of 'fair comment' is in dire need of relabeling if not a wholesale rethink:

"In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a "bulwark of free speech", that "…the law here is dogged by misleading terminology… 'Comment' or 'honest comment' or 'honest opinion' would be a better name, but the traditional terminology is so well established in England that it is adhered to here".

We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities."

All here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html

Time for Strasbourg to stop the abuse of criminal libel laws

Across Europe, criminal libel laws continue to be routinely abused to silence legitimate criticism. In its most extreme form, we see this happen in places such as Azerbaijan, where journalists are serving jail time; but in other countries, too, criminal libel laws are routinely employed against journalists. Because of the availability of prison sentences and often hefty fines, and the fact that a conviction will lead to a criminal record, these laws cast a long shadow and have a serious chilling effect on free speech.

One might have thought that the European Court of Human Rights, in its de facto role as a constitutional human rights court for Europe, would have picked up on this and have issued an unequivocal ruling stating that the use of criminal libel laws, particularly when prison sentences are available, violates the right to freedom of expression. It would be a useful ruling to issue. It has had appropriate cases before it.

Unfortunately, it has not done so. In a series of recent cases, it has come close though. In its recent decision in Gavrilovici v. Moldova (15 December 2009, Application no. 25464/05), the Court stated: "[T]he Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired” (par. 60)

Similarly, in Bodrožić and Vujin v. Serbia (23 June 2009, Application no. 38435/05) the Court held: "[R]ecourse to criminal prosecution against journalists for purported insults raising issues of public debate, such as those in the present case, should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights (para. 39)"

And in its decision in Cumpănă and Mazăre v. Romania (17 December 2004, Application no. 33348/96), the Grand Chamber explained – in relation to the imposition of a prison sentence – that such exceptional circumstances might include “cases of hate speech or incitement to violence” (para. 115; see also Mahmudov and Agazade v. Azerbaijan, par. 50).

Also last year, the Court held in Długołęcki v. Poland (Application no. 23806/03, 24 February 2009) that “when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed” (par. 47); and see again, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, (Application no. 35877/04, 18 December 2008) para. 51).

While all these statements are helpful, in none of these cases did the Court go so far as to state that criminal libel per se violates freedom of expression. It probably wasn't necessary for it to do so on the facts before it - but it would have been useful had the Court taken a step back, assessed its backlog of Article 10 cases, realised many of them concerned criminal libel convictions and entered a categorical judgment of principle.

What the Court has done is refer to the availability of civil law remedies when it has found that the imposition of criminal sanctions on speech violated Article 10. For example, in Mahmudov and Agazade v. Azerbaijan the Court took into consideration that the criminal sanction imposed in that case “was undoubtedly very severe, especially considering that lighter alternatives were available under the domestic law” (at para. 50). And in Lyashko v. Ukraine (Application no. 21040/02, 10 August 2006), the Court held: "[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media." (par. 41f) The latter is in fact the standard Castells v. Spain statement re-hashed and with some emphasis added - but the Court could have gone much further.

There are in fact numerous cases where the Court has held that the use of civil law remedies in defamation is to be preferred over criminal law remedies (see, for example, Fedchanko v. Russia, 11 February 2010, Application no. 33333/04; Krutov v. Russia, 3 December 2009, Application no. 15469/04; Lombardo and others v. Malta, 24 April 2007, Application no. 7333/06). In Raichinov v. Bulgaria (20 April 2006, application no. 47579/99), the Court stated that "the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies" (par. 50).

Similarly, in Kubaszewski v. Poland (2 February 2010, Application no. 571/04), the Court emphasised that “the party who felt offended had recourse to means of civil law which, in the Court's view, are appropriate in cases of defamation" (par. 45).

All of this is helpful - but it stops short of what's really needed: a categorical statement denouncing criminal libel as a violation of freedom of expression. It's always a case of so close, yet so far.

The time has now come for it to make that final step. Criminal libel violates freedom of expression. Look at the annual reports of the CPJ, RSF, Article 19 and dozens other free speech groups, domestic and international. Criminal libel laws are abused to restrict legitimate journalism. The European Court is in a position to do something about it - now do it.

The case of Makarenko v. Russia will be before the Grand Chamber selection panel soon and presents an ideal opportunity. My plea to the Panel: accept the case, and let the Grand chamber issue a suitably Grand judgment and rid the continent of one of the most abused pieces of law around.

ECHR - Article 8 and reputation

While looking for something entirely unrelated, I stumbled across the case of A. v. Norway where the Strasbourg court (uncharacteristically for a case involving Articles 8 and 10) has an attempt at legal reasoning to justify bringing reputation within the scope of the rights protected under Article 8:

"63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person's “honour and reputation”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).

64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007-...) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person's reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).

65. The question is whether the State has achieved a fair balance between the applicant's “right to respect for his private life” under Article 8 and the newspaper's right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references). In examining this question, the Court will have regard to the State's positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004-XI).

66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant's private life under Article 8 as opposed to that of safeguarding the newspaper's freedom of expression under Article 10."

This is quite interesting and one wonder what to make of the last line. Given the widespread abuse of libel laws to restrict legitimate criticism, it would be far more useful had the Court given clear guidance along the lines of "this conflict must be seen within the parameters set by Article 10" - ie any restriction imposed on speech must be justified as clearly and demonstrably necessary. No wishy-washy weighing of rights, that never works and would only encourage those who already use the libel laws as a cloak behind which to hide their corrupt activities...

Canadian Supreme Court creates libel defence of responsible publication

Good news from the Canadian Supreme Court:

"[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:



A. The publication is on a matter of public interest

and:

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff's side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances."

Grant v. Torstar Corp., 2009 SCC 61

Criminal and seditious libel – time to move on

At common law, there are a number of criminal offences that have historically been used to silence dissenting voices. The offence of seditious libel in particular stands out. There is no clear agreed definition, but the main element is to bring into hatred or contempt, or excite disaffection against, the government.

Harry Kalven, a leading free speech scholar of the 20^th century, said of the offence:

The concept of seditious libel strikes at the heart of democracy. Political freedom ends when government can use its powers and its courts to silence its critics … If [a society] makes seditious libel an offence, it is not a free society no matter what its other characteristics.[1]

That is a strong statement, but a quick look at the history of the offence would tend to confirm Kalven’s view. Introduced in the 17^th century, it was used against such dangerous individuals as Thomas Paine – on the grounds that his Rights of Man brought the King and Government into hatred and contempt – and Indian freedom fighter Bal Gangadhar Tilak. More recently, however, the offence has fallen into disuse in the UK – there have been no successful prosecutions in living memory, and in 1990 the Divisional Court resolutely rejected an attempt to prosecute Salman Rushdie and his publisher[2] – and countries such as New Zealand have formally abolished it.

Elsewhere, however, the offence of sedition is alive and well and in frequent use – particularly in less democratic parts of the world. In the Gambia, for example (a tourist paradise but also one of the more dangerous places on the planet to be a journalist) a group of seven Gambian journalists is currently on trial for publishing and conspiracy to publish seditious materials. What was the allegedly seditious material they published? They had commented that the remarks by the Gambian President on the unsolved murder of Deyda Hydara, a journalist shot dead in a roadside attack in December 2004, were “inopportune” and “provocative”. They furthermore called on the President to admit to long-suspected government involvement in the Hydara murder and institute a renewed investigation. Government involvement is not implausible, incidentally: the Gambian government has a history of “disappearing” journalists and is currently refusing to comply with a June 2008 judgment handed down by the ECOWAS Court of Justice ordering it to produce Chief Manneh, a journalist who was last seen being bundled into a car by suspected security agents. The sedition trial is ongoing – with prosecution witnesses being heard behind closed doors, Star Chamber-like – and if found guilty, the journalists face a lengthy term of imprisonment.

This case in the Gambia is not an isolated instance: over the last few years there have been dozens if not hundreds of prosecutions for sedition in such countries as Malaysia, Uganda and India. Allegedly ‘seditious’ publications over which individuals have been prosecuted include publishing the flag of Malaysia upside down as a form of protest;[3] describing the Gambian president (him again) a “bundle of terror”;[4] and alleging government involvement in killings in North Uganda.[5]

Sedition is not the only common law offence used to suppress legitimate dissent and freedom of expression. The ‘old’ offence of criminal libel is similarly useful to governments of a lesser democratic streak who wish to silence oppositional voices. Criminal libel was introduced at around the same time as seditious libel – in Elizabethan Britain – with the object to end the common practice among ‘gentlemen’ to settle disputes involving their honour by dueling. It was, essentially, a public order offence. It has all but fallen into disuse in the UK, where successful prosecutions are now as rare as hen’s teeth, and has been abolished elsewhere. However, like sedition, it is a tool that is still in common use to suppress dissent in countries in the lower regions of the democracy rankings. In fact, research has shown that criminal defamation is the tool of choice for this purpose: a recent mapping exercise by the freedom of expression organization, Article 19, identified dozens of countries where criminal defamation remains in active use (in addition to several more where it lies dormant) and several journalists serving prison sentences.[6]

The problem with both sedition and criminal libel lies not just in the individual cases in which the law is actually used to prosecute independently minded journalists. Because of the invariably harsh sanctions that are available, both offences cast a long shadow: no journalist relishes the prospect of a lengthy term of imprisonment. It should also be noted that suspended sentences are very effective: commonly imposed in countries in Eastern Europe as well as in Africa, Asia and Latin America, these are as effective in silencing a critical voice as an actual term of imprisonment: the suspended sentence hangs over a journalist’s head like the Sword of Damocles.

Because of this, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Special Rapporteur for Freedom of Expression at the OAS have all called on States to repeal criminal defamation laws.

A longstanding problem, however, has been the continuing existence of both criminal and seditious libel (and similar offences in civil law countries) on the Statute books. The Gambian government justifies its use of sedition laws by pointing at their continued presence on the UK statute books, saying, in effect, “if you have retained these laws then surely they must be democratic”.

But a glimmer of hope has appeared on the horizon. Following a long campaign by a coalition of various free speech groups, the UK government on 9 July 2009 agreed formally to abolish the offences of criminal, seditious, and obscene libel. Lord Bach, for the ministry of justice, stated in the House of Lords:

[T]hese are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today.[7]

Lord Bach made clear that the crimes of sedition and criminal libel were being abolished largely for foreign policy reasons:

Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.[8]

Formal abolition is likely to take place in November, when the Bill in which these amendments will be made (the Coroners and Justice Bill 2009) is likely to receive Royal Assent.

This move by the UK government is an significant victory for free speech campaigners and sends an important signal that criminal and seditious libel laws have no place in any democracy. It may be influential in various constitutional challenges that are pending – the Ugandan Supreme Court is currently considering a petition to declare criminal libel unconstitutional, for example.[9]

The abolition of these laws in the UK, and the strong governmental statement that these laws are arcane and of a bygone era, may also encourage the European Court of Human Rights to take a stronger stance on the abuse of these laws (while the Court often finds violations in individual cases it has not, as yet, gone so far as to declare criminal and seditious libel laws to violate the right to freedom of expression per se). Such a finding would certainly be welcome; in a country like Azerbaijan, which falls under the jurisdiction of the European Court of Human Rights, several journalists are currently serving prison sentences for criminal defamation and related offences. While the European Court will certainly find their convictions to violate the right to freedom of expression when their cases finally come before it, an unequivocal statement by the Court that the criminal libel law itself is at the heart of the problem (it certainly is in the hands of the current government) would surely trigger their abolition and improve media freedom throughout Europe.

Peter Noorlander

Legal Director, Media Legal Defence Initiative*

* the Media Legal Defence Initiative (www.mediadefence.org) is supporting the defence of the GPU 7, as they have become known, and several other of the prosecutions mentioned in this article. To find out more or to become involved in our work, email info@mediadefence.org.

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[1] Harry Kalven, ‘The New York Times Case: A Note on “the Central Meaning of the First Amendment”, [1964] Sup Ct Rev 191 at 205.

[2] R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All England Law Reports 306. This decision was equally resolutely confirmed by the European Commission of Human Rights, with which Rushdie’s would-be private prosecutor Abdal Choudhury had lodged a complaint for violation of his right to freedom of expression: Choudhury v. the United Kingdom, Application No. 17439/90, 5 March 1991.

[3] By Malaysian blogger Kickdefella: http://kickdefella.wordpress.com/2008/08/04/nation-in-distress/.

[4] By US-based Gambian journalist Fatou Jaw Manneh: http://www.afrol.com/articles/30350.

[5] By Andrew Mwenda, Managing Editor of The Independent, a political affairs magazine in Uganda, and two of his journalists, John Njoroge and Charles Bichachi

[6] See http://www.article19.org/advocacy/defamationmap/map/.

[7] House of Lords HAnsards, 9 July 2009, col. 850: http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0013.htm.

[8] Ibid.

[9] The Constitutional Court, which acts as a court of first instance in these matters, turned the petition down.

Zuma obtains 'very substantial' libel damages from the UK Guardian

The statement made in court can be found on the Schillings website: http://www.schillings.co.uk/Download.aspx?ResourceId=9266

Constitutional Court of Colombia finds Criminal Code article affecting slander and libel cases to be unconstitutional

From the Colombian Free Press Foundation:

"Journalists and media outlets will no longer be subjected to criminal charges for libel and slander when they publicise truthful information about individuals who have been absolved of wrongdoing by the judicial system. A Constitutional Court ruling to this effect was made public on 2 July. In making the decision, the Constitutional Court declared Article 224 of the Criminal Code to be contrary to the Constitution.

The ruling came about as the result of a request submitted by the Los Andes University Law Department's Public Interest Group (Grupo de Interés Público de la Facultad de Derecho de la Universidad de Los Andes), with support from FLIP. In the request, the Constitutional Court was asked to review the constitutionality of the Criminal Code article in question. The request for review was supported by citizens and both national and international universities and organisations.

The Criminal Code article covers situations where an individual is absolved of wrongdoing or where a court case against an individual is dropped. In these cases, the Criminal Code states that if a media outlet or media practitioner is sued for publicising information about that individual or event, they cannot not exempt themselves of responsibility for the information even if they prove it to be true. The Constitutional Court ruled that, contrary to the Criminal Code article, the proof of the truthfulness of the information in question is admissible and can be used a defence against the slander or libel charge.

The Constitutional Court described Article 224 of the Criminal Code as stating the following: when a sentence has already been issued in a case (. . .) no further information can be publicised about the case that was the subject of the criminal proceedings, even if it relates to issues such as risks to international humanitarian law or human rights, or the functioning of democracy and its institutions, such as takes place with accusations against public figures and in criminal investigations that are highly relevant to the public.

The Constitutional Court considered the Criminal Code article to give disproportionate consideration to the right to honour of individuals relative to the right to freedom of expression and information rights. The court stated that the appropriate use of freedom of expression cannot be criminally punished when the information distributed is truthful - or at least is based on real events and the required sources have been consulted - since this constitutes a risk to the right to information.

With its decision, the Constitutional Court did not decriminalise slander and libel, but it has made a ruling with respect to the proportionality of a criminal law sentencing relative to the right to freedom of expression. The right to freedom of expression has been deemed to prevail over the right to honour of individuals. In addition, the decision highlights the importance of the journalistic investigation - its truthfulness and impartiality - with respect to issues of public interest, independent of whether an issue has been resolved at the judicial level. "

UK government commits to abolition of criminal, seditious and obscene libel

Great news in the House of Lords yesterday. Lord Bach, parliamentary under-secretary of state for the ministry of justice, said, in response to amendments tabled by the indefatigable Lord Lester:

"the amendments would abolish the common law offences of sedition and defamatory forms of criminal libel. The Committee will be grateful to him for his explanation of his amendments. We have listened carefully to this short debate. From what we have heard, there seems to be a broad consensus that these are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today. We agree.

As the noble Lord, Lord Lester, said, any behaviour that should remain criminal is amply covered by other, more modern offences. The noble Lord, Lord Kingsland, made the same point. Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.

The Government are content to accept the amendments in principle ... I can undertake to propose similar amendments in time for Report. Those amendments would, among other things, extend abolition of the offences to Northern Ireland and pick up some consequential amendments and repeals to various linked statutory provisions. We also intend to take the opportunity to abolish the obsolete offence of obscene libel."

Privacy and defamation at the ECHR - two new cases

The European Court of Human Rights has issued two new decisions on privacy and defamation: Karako v. Hungary and Egeland and Hanseid v. Norway. Karako is an Article 8 defamation case, in which the Court holds no violation for strident comments made regarding a politician during election times. The Court's reasoning is interesting as it attempts to answer some questions on the extent to which Article 8 protects reputation:

"23. For the Court, personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society – perhaps rightly so – but not one's integrity, which remains inalienable. In the Court's case-law, reputation has only been deemed to be an independent right sporadically (see Petrina v. Romania, no. 78060/01, 14 October 2008, and Armonienė v. Lithuania, no. 36919/02, 25 November 2008) and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant's private life. However, in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant's reputation alone which was at stake in the context of an expression made to his alleged detriment."

This is where the reasoning ends - unfortunately. While to me it would follow that the case should be inadmissible since Article 8 is not affected (the alleged interference did not actually impinge on the private sphere), the Court goes on to apply article 10 reasoning and finds no violation of Article 8. The Court does seem to be taking time here to reflect and the decision puts an interesting gloss on Petrina and Pfeiffer. There's a partly concurring opinion by judge Jociene who favours a much bolder appraoch in favour of reputation as an article 8 right. It's a Second Section decision.

The first Section, meanwhile, continues on the pro-privacy path in Egeland and Hanseid v. Norway, a case concerning the taking of photographs of accused outside the court. Rozakis states in his concurring opinion (which otherwise is concerned with the margin of appreciation): "in matters of clashes between freedom of expression (and more specifically the taking of photographs in a public place) and the right to private life, the Court has already developed jurisprudence to the effect that the balance should be tipped in favour of private life".

An ancient obstacle to free speech

from the Guardian's Comment is Free:

In 1848, the Duke of Brunswick sent his agent to buy an 18-year-old copy of the Weekly Dispatch from the publishers' office. It had come to his attention that an article in the 1830 volume of that magazine was defamatory of him, and he wished to do something about it. Despite the fact that the statute of limitations back then was set at six years and the duke was able to prove only that two copies were still in circulation – the one his agent had bought and another at the British Library – the court allowed the action to go ahead and eventually awarded him £500, a tidy sum in those days.

In an ideal world, only legal historians would be familiar with this ancient tale.

Unfortunately, in the non-ideal world that we inhabit, journalists and media lawyers alike are familiar with the case; it provides the foundation of the "multiple publication rule" which, as applied today, means that every time someone accesses a page on the internet it is deemed to be "published" afresh. The result: the statute of limitations never runs out, and actions for libel can potentially be launched in perpetuity.

This is highly problematic for anyone who publishes online. Most articles, once published on the internet, are archived online, usually with their own URLs. They can show up in search results and remain accessible to one and all.

Imagine, then, the scenario of an internet user engaging in a spot of vanity-Googling and discovering, somewhere in the search results, an article written about him several years ago and published in the online edition of a newspaper. It alleges – let's say – some form of misconduct in public office. The journalist who wrote the piece has since moved on and the editor may not have access to the journalist's notes or other material relevant to the story. Our random internet user sues for libel; how is the newspaper supposed to defend a case like that? Key witnesses may have disappeared and defences such as qualified privilege may have expired with the passage of time. Surely such a case ought to be thrown out; yet the law would allow it.

Many other countries spotted some time ago that the multiple publication rule produces absurd results. The New York appeals court ruled as early as 1948 that it had "its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information" and that it "gave scant heed to the public policy which underlies statutes of limitation, to outlaw stale claims". Instead, the court held, there should be a single publication rule, declaring that the statute of limitations begins at the point of publication of an edition (while allowing that republication or publication of a paperback edition may reset the clock); not whenever a new sale is made. This "single publication" rule has since been held to apply to internet publications as well and sets the standard for balancing the interests of protecting reputation on the one hand, and the free flow of information and ideas on the other.

The European Court of Human Rights was invited in a recent case involving The Times to confirm that the UK's multiple publication rule violated the right to freedom of expression. While it declined to provide that ruling, the European court did acknowledge that "libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom".

The multiple publication rule is one of several factors that render UK libel law so plaintiff-friendly and attracts such a number of foreign litigants. It poses real and serious problems for UK publishers – and not just the big national publications, but also small regional and independent publishers – and is badly in need of reform. Last December, the government promised a consultation "as soon as possible in the new year". This promised consultation is yet to materialise. It is not clear what is causing the delay; but as the government dithers, free speech suffers.

Times v. UK: another cop out

The European Court of Human Rights has just notified its judgment in the case of Times v. UK, which concerned the question of the application of the UK's libel laws to newspaper Internet archives. This case raised two important questions of principle:

1. whether archived news items should be considered to be published afresh whenever they are read and therefore potentially open to a defamation action many years after their original publication
   
2. whether online publications should be required to monitor their entire archive and append notices to old news items whenever libel proceedings are initiated with regard to them

The Court manage to wrangle out of ruling on the first point, and on the second question considered that, on the facts of the case, there was no violation. It refused to rule on the wider issue of the chilling effect of the continuing vulnerability of archived stories to libel threats but conceded that "libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10."

This is another very weak Strasbourg judgment. Arguably wrong even on the facts, I take even greater exception to the Court's narrow-minded assertion that "it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case" (paragraph 48). Why on earth not? Surely by ruling on points of principle the Court would redeems its position as a court of authority rather than a narrow last instance adjudicator of facts, and in the process begin to rid itself of its growing backlog of more than 100,000 cases. What Europe needs - with all respect and in the fullest understanding of the poor decisions that continue to come out of some countries - is not a court of last appeal that is collapsing under its caseload, but a constitutional court that lays down the basic rules and principles. So the current decision is not just poor for media freedom in Europe, but another step on the road towards a total collapse of the Strasbourg system.

ECHR defamation cases: imprisonment & enforced apologies

In the recently decided case of Mahmudov and Agazade v. Azerbaijan, the European Court of Human Rights reaffirmed that imprisonment is not a permissible sanction in defamation cases. Unfortunately, it also continued to rule it out altogether, stating that imprisonment may be permissible "where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence" (para. 50). Note that this does not limit imprisonment to situations of hate speech - hate speech is given as one example. While this certainly hints in the right direction, it is still not the kind of unequivocal language one might expect from a human rights court and gives government the opportunity to keep the sanction of imprisonment on the books. Not helpful...

Meanwhile, in Kazakov v. Russia, the Court offers this interesting statement: "to make someone retract his or her own opinion by acknowledging his or her own wrongness is a doubtful form of redress and does not appear to be “necessary”". Given that 'forced' apologies are a common feature of the defamation law in many European countries, this statement may have interesting ramifications for future cases.

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..."

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.

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