Maintaining Freedom Expression of the Press in a Sensitive Religious Society

8/4/2019 Maintaining Freedom Expression of the Press in a Sensitive Religious Society

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Journalists pens are the eyes of the heart of democracy. Therefore, the journalists should not be afraid of

their activities. Shadow of fear will only blunt the sharpness of their pens.

MAINTAINING FREEDOM EXPRESSION OF THE PRESS IN A SENSITIVE

RELIGIOUS SOCIETY

by

Aulia Rahmawati

On Democratic government system, supreme sovereign in the hands of people, so

the state must guarantee the rights of the community. Freely fundamental right

that must fulfilled by the state is the right to express opinions (freedom of

expression), the right to assembly and association (freedom of assembly), and the

right to enjoy a free press (freedom of the press). The right to express opinions

and the right to enjoy a free press is placed in a "single package", called freedom

of expression. Indonesia is a pluralistic country, in terms of religion, creed,

ethnicity, and race. The high diversity in Indonesia turned out to be one of the

triggers of conflict between groups, especially related with issues of freedom of

expression and the press that intersect with religious and beliefs embraced by the

community.

I. IntroductionDemocracy is a form or mechanism system of government of a state as the efforts to

realize the sovereignty of the people (the will of the people) of the country to be conduct by

the government of that country.1

According to Andiwidjajanto et al, in his bookTransnasionalisasi Masyarakat Sipil,

stated that being a democratic country requires the country concerned through a stage called

transition to democracy. This stage will be experienced by a country ruled by an authoritarian

regime, as a form to achieve a more democratic conditions. For more than 30 years Indonesia

was ruled by the authoritarian Soeharto regime, known as the "New Order". A wave of

protests by the people of the Soeharto regime started to occur when Indonesia was hit by a

regional economic crisis that occurred in the decade of the 90s. A wave of protest is able to

overthrow the authoritarian regime of Soeharto in May 1998. Since then, Indonesia has

entered a phase transition accompanied by the decentralization process that emphasizes theautonomy of the people and more implementation of transparent governance.

The period of democratic transition marked by the increasing number of discourse

about strengthening of civil society, freedom of expression and opinion increasingly have

their own place due to the rejection of dominant and centralized model of government that

replaced with a model of democratic government. The spirit of change, reform of government

and social order is part of the stage of democratic transition.

1Jimly Asshiddiqie. Hukum Tata Negara dan Pilar-Pilar Demokrasi, Serpihan Pemikrian Hukum, Media dan

HAM. Jakarta: Constitutional Press. Page.335


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Generally, democracy as a basis for national life gives the sense that there is a chance

for people to participate actively in the formulation of government policy. Active

involvement of the people is necessary in order to fulfill the fundamental rights of citizens.

Guarantee of fundamental rights of citizens is the main parameter of the realization of a

democratic state. A democratic state must guarantee fundamental rights freely, including the

right to express opinions (freedom of expression), the right to assembly and association

(freedom of assembly), and the right to enjoy a free press (freedom of the press)2

In a democratic society there is freedoms of citizens to participate actively as

regulated in legislation.3

So that people can participate in influencing policy-making process

established by the government, hence the need for tools or media that will be used in such

participation.

The role of media is very important in the process of establishing a democratic

culture, where a transparent government became one of the parameters to achieve full

democracy. The role of media becomes very important to remember history before 1998, that

the government did not always tell the truth the truth in public. Merphin Panjaitan, in his

book entitled Gerakan Warga Negara Menuju Demokrasi, development of democratic

culture among others through the understanding, deepening and experience of basic values

and principles of democracy in civic life and the state: freedom, independence and also

determine, openness, tolerance and discussion, rational, diversity and peace, freedom of

thought and religion, freedom of assembly, association and expression, equality, fraternity.4

However, the process of establishing a democratic culture is not as easy as turning the

palm of hand. There are basic values and principles of democracy which are not yet fully

understood by the society, which are: openness, tolerance and discussion, diversity and peace,

and freedom of thought and religion.

The above assessment is based on the survey result of LSI (Lembaga Survey

Indonesia/ Indonesian Survey Institute), which indicates that the number of religious

intolerance in Indonesian society has increased. In this survey, LSI takes two current issues:

violence against Ahmadiyya followers and the establishment of houses of worship. Related to

the Ahmadiyya, the survey results show a justification for the violence on the Ahmadis

higher. If in 2005, the number of people who agree with acts of violence on the Ahmadiyya

only 13.9%, by 2010 this figure rose to 30.2%. The number of residents who agree if the

2

Mahfud MD. (1999).Hukum dan Pilar-Pilar Demokrasi. Yogyakarta: Gama Media. Page 1843Look the Article 28J Paragraph (2) of the Indonesian Constitution 1945

4 Merphin Panjaitan. (2001). Gerakan Warga Negara Menuju Demokrasi. Jakarta: Restu Agung, Page 21-50


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government banned Ahmadiyya teachings in Indonesia was also higher. In 2005, the number

of those who agree if the government banned Ahmadiyya only 35.2%. Currently in the year

2010 the number rose to 53.4%.5

These data show decreasing respect for people who have

different beliefs.

Then, based on Monthly Reports on Religious Issues Wahid Institute, edition of the

13th

August 2008, also found several cases of mass anarchy when linked with issues of

"religion". Some of them are Book Sues Wrong, Mass (NU Islamic organizations, Ansor,

Banser, FPI.red) Acting Anarchist in Tasikmalaya in West Java on charges of religious

blasphemy; Purwakartas Regent Accused of Defamated the Religion in Purwakarta-West

Java, charges of religious defamation; and there were 20 cases Incidents of Violations and

Discriminations Against Indonesia Ahmadiyah Congregation after Three Join Decree of the

Ministers on June 9, 2008.

Director of the International Crisis Group Indonesia, Sidney Jones based on the

results of his research reveals there are a number of factors that trigger such intolerance,

among other things, the expansion of religious teaching in areas that are not proper,

democratic culture of freedom of expression associated with each race, the lack of control of

national governments and police in the region.6

The essence of religious freedom as a human

rights theoretically can not be separated from freedom of expression. While freedom of

expression is very tight and impossible to separate from freedom of thought and freedom of

belief.

Problems of religious freedom have been considered as a matter of "sensitive".

Therefore, although there is occur a problem, an open discussion is seldom to conduct in this

issue. Discussion on the issue of religious freedom is fear to violate religious harmony and

violate Tribe, Religion, Race and Inter-Group. This is where the media's role as distributor

of information plays an important role in introducing, uphold and preserve the culture of

democracy that has not been comprehensively understood by the people of Indonesia.

Based on the above background there are two issues which are: First, how is the role

of the media (the press) in fulfillment of the right to freedom of expression as an effort to

create a democratic state?. Second, what kind of legal products that can accommodate the role

5For more details read on Meningkatkan Intoleransi Beragama Masyarakat Indonesia (Religious Intolerance

Improve Society of Indonesia), in LSI Monthly Review, Issue No.23, October 2010, or can be accessed at the

official website of LSI, www.lsi.co.id6

Toleransi Umat Beragama Turun (People of Religious Tolerance Down), by Icha Rastika (17/01/2011),accessed from sites http://nasional.kompas.com/read/2011/01/17/22255757/Toleransi.Umat.Beragama.Turun


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of the media (the press) in fulfillment the rights of freedom expression of the press in

Indonesia pluralistic society?

II.Analysis1. The role of the media (the press) in fulfillment of the right to freedom of expression

as an effort to create a democratic state.

Why the press? Both the freedom of the press or freedom of speech and freedom of

opinion or expressing our opinion under the "shade" or the "single package" called "freedom

of expression". Loads of freedom of expression is very broad, ranging from freedom tapped

the table to draw the attention of the participants deliberation by leaders of deliberation,

whistling, singing, painting, sculpture, speak, speech, publishing a statement and write letters

to the press media. The work of journalism, published in the print press media7, electronic

media auditif8, audiovisual and electronic media

9, and online media, is part of freedom of the

press, which as a whole may be called freedom of expression.

In the preamble to weigh letters a and b of Law No. 40 of 1999 on the Press, namely:

a. that press freedom is one form of people sovereignty and become a very importantelement to creating the life of society, a democratic nation and state, so the issue of

independence of thought and opinion as stated in Article 28 of Act of 1945 must be

guaranteed;

b. that in the life of society, nation, and state that is democratic, freedom of thoughts andopinions expressed in accordance with the conscience and the right to obtaininformation, a human right that is essential, necessary to uphold justice and truth,

promote the general welfare, and intellectual life of the nation;

For the realization of democracy itself, there should be a support system for its

optimal implementation. There should be a democratic system based on a rational culture,

honest, open, accountable and ensure egalitarianism. The role of mass media, both print and

electronic, has an important role to promote democratic culture in society.

In the Article 3, paragraph (1) of the Law No.40 of 1999 on the Press and Haris

Sumadiria in his book entitled Jurnalistik Indonesia, explains the five main functions of the

press: (1) Information, to inform, (2) Education: to educate, (3) Correction: to influence, (4)

Recreation: to entertain, (5) Mediation; to mediate. From the definition and the main

functions of the press above, can be interpreted that the press will also have a social function

7

Newspaper, Magazine8Radio

9 Television, Internet


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that is to sharpen the sense of society by providing critical information (right to know) as

material for expressing audiences opinion (right to expression).

The press has a strategic function and the extraordinary power to shape public opinion

on a matter. Historically, through the language he used, the media has tremendous power in

creating a tolerant and peaceful society, or, conversely, to incite people to conflict, war with

each other. By considering "the power of mass media", it should be in a very pluralistic

country (religion, belief, race or ethnicity, culture) is put hope on the strategic role of the

media to promote the climate of tolerance and peace, by presenting the media fact of

pluralism perspective10

, voicing the Human Rights, the rights of minority groups, and

alignments on the oppressed, regardless of religious background, beliefs, ethnicity, and

sexual orientation11

. This is similar to the function of the press in Article 3 paragraph (1) of

the Law No.40 of 1999 on the Press, as an information media, the press is expected to uphold

and fight for one of the pillars of the press, namely Idealism, as upholding the values of

democracy, human rights, fight for justice and truth. Therefore, by many, especially human

rights activists, the media staying expected to be one row to campaign of the pluralism idea

for creating a peaceful life that appreciates any differences.

Freedom of the press is an important element in the formation of a democratic state

system, open and transparent. The press as an information media is the fourth pillar of

democracy walking along with law enforcement to create a balance in a country. The press as

a correction media should be guaranteed plurality and pluralism in Indonesia. Guaranteed

freedom of the press in performing its duties is considered important to maintain objectivity

and transparency in the press, so the news can be expressed in truth without any fear or under

threat of the ruler. The values of freedom of the press have been accommodated in the Article

28, 28E paragraph (2) and (3), 28F of the 1945 Constitution, and the Law No.40 of 1999 on

the Press. Therefore, the state has clearly recognized that freedom of expression and freedom

of thought are a part of the realization of a democratic country and based on law.

10Guarantee the absence of truth coercion by one group against another group.

11 Gay, Lesbian


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2. Arrangement and Harmonization the Freedom Expression of the Press in IndonesiaPluralistic Society

Freedom of the press in the high diversity of expression is the most vulnerable factor

in triggering religious conflict. In performing its function as a media channel information, the

press can be used as a tool to create a society that is conscious of pluralism, where pluralism

is a commitment, because the reality of plural society12

, it is necessary to respect the plural

of, pluralism, and difference. Pluralism does not talk about truth, but the pluralism is the

attitude of openness.13

However, the press, if not strictly controlled, careful and precise tool

can be most easily trigger conflicts, given "the power of mass media" that belongs to the

press can easily form an opinion in the community.

Table 1

Religions and Local Beliefs in Indonesia

Religions/ Beliefs Explanation Status

Official Religions Islam, Christianity, Catholicism,

Hinduism, Buddhism, and

Confucianism (Confucius)

* Explanation of Law No.1 of 1965 on

the Prevention of Abuse and / or

Religious Blasphemy, Article 1:

With the words "General Expenses" is

meant what is commonly meant by the

words in the Book of Criminal Justice

Act. Religions embraced by the

population in Indonesia is Islam,

Christianity, Catholicism, Hinduism,

Buddhism and Confucianism(Confucius).

Local Belifes Kaharingan (Dayak / Kalimantan);

Sunda wiwitan (Baduy Banten);

Sipelebegu-Parmalim (Batak / North

Sumatra); Saminisme (Blora / Central

Java); Towani Tolotang (Sidrap);Patuntung (Kajang, Bulukamba, South

Sulawesi); Cigugur (from Kuningan,

West Java); Wetu Telu (from

Lombok); Naurus (home island of

Seram, Maluku); Buhun (West Java);

Kejawen (Central Java and East Java)14

* Article 28E Paragraph (2)

Constitution Indonesian Republic State

of 1945:

'Everyone has the right to freedom of

belief to believe, express thoughts andattitudes, according to his conscience'.

* Article 29 paragraph (2) Constitution

Indonesian Republic State of 1945:

'State guarantees freedom of each

citizen to embrace their religious

teachings and to worship according to

his religion or belief'

12Plural, Compound: Lots of Interest, Flow Belief, Race, Religion

13 Franz Magnis Suseno said that pluralism: the implications of a tolerant attitude: a willingness to accept very

well the reality of plurality of religions, that is the fact that in a society and country life of people and groups of

people with different religious beliefs. Pluralism was not demanding that all were considered true-belief.

Pluralism does not talk about truth. Rather, pluralism is the attitude of openness.14

Look at, Ibn Qoyim.Local Religion and Views of Life: Religion Kaharingan The Dayaks in Borneo and the

Sunda wiwitan Religion Bedouin Community in Banten. PMB-LIPI, 2003; Ibn Qoyim. Local Religion and Views

of Life: A Study of Society and the adherents of Religion Tolotang Patuntung, Sipelebegu (Permalim),

Saminisme Sundanese and Javanese Religion, PMB-LIPI, 2004, quoted in the paper and view ResearchingLocal Religious Life by Abdul Rachman Patji, accessed from sites

elib.pdii.lipi.go.id/katalog/index.php/searchkatalog/.../6351/6352.pdfon May 26, 2011


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In the juridical right to express opinions is fully guaranteed by the state, both in the

instruments of national legislation and international instruments ratified. Here are some rules

related to freedom of expression:

Article 28E Paragraph (3) UUD NRI 1945:

Everyone has the right to freedom of association, assembly, opinion and expression

Article 19 UDHR (Universal Declaration of Human Rights), guarantees the right to express

opinions:

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 informa-

tion and ideas through any media and regardless of frontiers .15

Article 19 paragraph (2) of Law no. 12 of 2005 on Ratification Ratification of International

Covenant on Civil and Political Rights (ICCPR):

Everyone shall have the right to freedom of expression; this right shall include

freedom to seek, receive and impart information and ideas of all kinds, regardless of

frontiers, either orally, in writing or in print, in the form of art, or through any other

media of his choice.

Although the three rules mentioned above, not on press freedom explicitly, all three

have shown a warranty and express recognition of the independence of thought and opinion,

freedom of expression and press freedom. And as mentioned earlier, freedom of expression

and freedom of the press are in a "single package".

This is in accordance with the letter a consideration in Law No.40 of 1999 on the

Press which stated that freedom of the press is one manifestation of people sovereignty which

is based on the principles of democracy and embodies the fulfillment of human rights as

contained in the Article 28E Constitution Indonesian Republic State of 1945.

In the midst of passion to realize the freedom of the press as an effort to complete the

transition towards fully democracy, the Indonesian press still has many problems, especially

when associated with with religious life in a pluralistic Indonesia. Freedom of expression of

the press often clashed with the offense of religious defamation or religios blasphemy16

.

15 Article 19, UDHR, adopted by the UN General Assembly on 10 December 1948, Resolution 217A(III).16On the one hand freedom of expression by the press as a medium ensures a more transparent government

(public disclosure), correction tool of government policy. While on the other side of freedom of expressionthrough the mass media sometimes actually have a negative impact if happens lack of strong control agencies,

that threaten freedom itself.


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Table 2

Blasphemy/Defamation Case by the Press

Source: Adapted from various news sources, print and online.

In this regard, there are some important notes that need to be given. First, the cases of

desecration of religion is always associated with religion what/who is be spotted. Who has

the right to say a particular religion has been spotted or not. This is very fundamental in this

problem. Formal judicial, of course, ultimately the decision maker is the judge. Especially in

religious matters, the judges often felt he had no "authority" in attitude and make the

interpretation. Second, because of the problems mentioned above, then the mainstream voice

of truth is often taken as a reference. In 2010, approximately 85.1% of Indonesia's population

is 240 271 522 Muslims, 9.2% Protestant, 3.5% Catholic, 1.8% were Hindu, and 0.4%

Buddhist.19

Third, therefore, religious desecration case in court always involve the masses.

Mass mobilization carried out not only to voice their aspirations, but to give the impression

that what is voiced by the majority opinion. This pressure is in turn expected to influence the

judge's decision. Finally, claims of religious desecration is not a problem of the nature of

17 When Jibril Stop by at the National Monument, HB Jassin Sign in Prison ( tempointeraktif.com/April 26,

2006)18

PETA Tabloid again publish caricatures of Prophet Muhammad SAW who previously have first published by

Danish newspaper Jyllands-Posten, 30 September 2005 editions ago, in the newspaper on display 12 cartoons of

Prophet Muhammad.19Indonesia: The World Factbook. CIA. March 19, 2009.https://www.cia.gov/library/publications/the-world-

factbook/geos/id.html

No Explanations Charge Years

1 HB Jassin (Magazine Editor):

Case short story "The Sky Clouds" by Ki Pandji Kusmin, which

was published in Literary Magazine, edition August 8, 1968.

Article 156a of the Criminal

Code,

Religious Defamation

1968

200617

2 Arswendo Atmowiloto (Chief Editor):

Results questionnaire Monitor magazine edition October 15,

1990, regarding the most admired figures reader. Polls showed

the Prophet Muhammad was ranked 11th.

Articles 156 and 156a of the

Criminal Code letters a,

Spreader Hatred/Religious

Insult and Blasphemy

1990

3 Teguh Santosa (Chief Editor of Rakyat Merdeka Online site):

The media showed images of the Prophet Muhammad

caricatures in the media pages Rakyat Merdeka Online on

February 2, 2006


Code,


2006

4 Imam Trikarsohadi (General Leader) and H. Abdul Wahab

(Chief Editor):

Loading of caricatures of Prophet Muhammad SAW in PETATabloid edition 53, dated February 6 to 12, 2006.18


Code,


2006

5 TEMPO Weekly magazine, edition of 4 to 10 February 2008.

In this edition, the magazine covers featuring former PresidentSuharto with her children in a similar composition of the

painting "The Last Super" Leonardo da Vinci's masterpiece

depicting Jesus Christ's holy communion with his students.

Article 156 of the Criminal

Code, Religious Blasphemy

2008
https://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/id.html


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truth itself, but more because of mass pressure, the majority-minority problem, which is

wrapped with the authority of religious interpretation.20

3. Religious Blasphemy and/or Religious DefamationArticle 156 of the Criminal Code reads,

Anyone who publicly expressed feelings of enmity, hatred, or contempt against one or

several classes of the people of Indonesia, punishable by a maximum imprisonment of

four years or a maximum fine of four thousand five hundred dollars. Word classes in

this chapter and the next chapter means every part of the Indonesian people who are

different from one or several other parts because of race, country of origin, religion,

place of origin, ancestry, nationality or domicile according to constitutional law.

Article 156a of the Criminal Code reads,

"Sentenced to imprisonment for a maximum of five years whoever intentionallypublicly issued feelings or acts: a. the main character of hostility, abuse or desecration

of a religion followed in Indonesia; with the intention that that person did not adopt

any religion as well, which is based on belief in one supreme God."

The seeds of religious desecration offense can also be seen in the Article 1 of Law

No. 1/PNPS/1965 explicitly states seek ban on public support and to make interpretations

about something religious. The provisions of this article further reads: " Every person is

prohibited in public deliberately tell, encourage or seek public support for an interpretation of

something that the main religion in Indonesia or to conduct religious activities that resemble

that of religious activities, interpretations and activities which deviate from the principal

teachings of that religion. "

Desecration of religion is considered as crucial and need to regulated in Criminal

Code and the laws because the first precepts of Pancasila and Article 29 Constitution

Indonesian Republic State of 1945 "Belief in God Almighty" as a central point of the life of

the state, then the offense Godslastering as blasphemy be a priority in religious offense.21

Settings on the "Blasphemy Religion", in the Criminal Code and Law No.1/PNPS/1965 lead

to the criminalization process. When they should be protected through criminal law is

freedom of religion. If this protection happen, according to international human rights law is

20Read Hilangnya Ayat-Ayat Konstitusi di Antara Ketakutan dan Konservatisme, by M. Choirul Anam-

Imparsial in Monitor Magazine, edition January-April 2010, page 7 or can be accessed at the official site

Imparsial, http://imparsial.org

21For more details, read. Prof H. Oemar Seno Adji,Hukum (Acara) Pidana dalam Prospeksi, page 92 and 100-

102.


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respecting people's rights to practice the religion of their choice, not protect respecting

religion.

In addition, there are multiple interpretations of religious desecration or abuse of

religion by law enforcement officials. In the decision on judicial review against

No.1/PNPS/1965 Law on Religious Blasphemy, later better known as the Blasphemy Law

Religion conducted by the Constitutional Court, the Court in the decision which rejected the

petition of the petition to revoke the Religious Blasphemy Law, looks confuse the term

defamation of religion (blasphemy), contempt of religion (defamation of religion), and hatred

speech:22

In some countries (Pakistan, England, Ireland, the United States, New Zealand,

Australia, Canada, Sudan, Malaysia, Germany and the European Initiative, red), the

prohibition of hatred speech which set the law by using various terms such as "hatespeech" or "hate propaganda," including the developed countries in Europe that also

took the road out this way. In this connection, the real opinion of title

No.1/PNPS/1965 Law is right, because as we all know, the title of this Act is the

Prevention of Abuse and/or religious blasphemy.23

4. Arrangement Press Freedom in Indonesian Positive LawWhy it is necessary to a balanced arrangement, between the guarantee of press

freedom of expressions and respect for the norms and values that exist in society?

Reporters Sun Frontieres, or better known as Reporters Without Borders (RWB), an

independent press agency based in Paris, France, issued a release of World Press Freedom

Index 2009. In this index, press freedom ranking of Indonesia, namely 101 of 175 countries

with a score of 28.5. Indonesia's position improved from the previous year which was ranked

111th with a score of 2724

. However, in 2010, a decline in the number of press freedom in

Indonesia, which was originally ranked at 101 in 2009 to be ranked 117 out of 178 countries

with a score of 35.83 in the year 201025

. Freedom of the press is said to wash the realization

22 Statement of hatred or hostility are statements disparaging a person or group based on religion, race, class and

sexual orientation. Prohibition of the statement of hate or incitement of hatred that lead to discrimination,

hostility and violence against other religious groups mentioned in the Article 20 of the ICCPR which requires

states to make the statement any propaganda for war, and all actions that advocate hatred based on nationality,

taste or religion that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.23 For more details read the paper Pengaturan Kebebasan Beragama dan Penodaan Agama di Indonesia dan

Berbagai Negara are presented by M. Atho Mudzhar (Head of Research and Development and Training

Ministry of Religious Affairs) in the Study of the Constitutional Court Decision No. 140 dated 19 April 2010 on

judicial review No.1/PNPS/1965 Law, organized by the Ministry of Justice and Human Rights, held at the Hotel

Anna Muara, Padang, on June 28, 2010.24

Data on World Press Freedom Index can be accessed at the official website of Reporters Without Borders,http://en.rsf.org/25Ibid


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of democracy when the press can be an institution that represents the various groups26

and

interests27

. If the parameter used "freedom of the press = the realization of democracy", then

based on World Press Freedom Index report by RWB above, Indonesia is said to have

setbacks in the process towards democracy.

Indonesian press system, according to Indriyanto Indriyanto Seno Aji in his book

Hukum dan Kebebasan Pers28, is a system of free and responsible press system (a free and

Responsible Press). System of free and responsible press can be interpreted to mean that the

press in carrying out his profession must remain "free" from the primordial subjective view29

and presents a factual news, true, accurate and balanced (cover both sides). Later at a press

control system that is responsible, open opportunities to the public opinion as a consumer to

control the media in performing its social function.

In his book,Law and Society in Transition: Toward Responsive Law, Philippe Nonet

and Philip Selznick, classifies the law in society into three30

, namely: repressive force of law

as a servant (repressive law), law as a separate institution that is able to tame the repression

and to protect the integrity itself (autonomous law), and the law as a facilitator of various

responses to the needs and social aspirations (responsive law).

Table 3

Characteristics of Law No.40 of 1999 on the Press

Indicator Law No.40 of 1999 on the Press

Making Process Participatory, because in the process of making legislative law to receive the

aspirations of the community by incorporating the aspirations of those in the Press

Law of 1999* Guarantee of press freedom: considerations weigh letters a, Article 4 paragraph (1)

and (2), Article 4 paragraph (2) jo Article 18 paragraph (1)

* The protection of journalists: Article 8

* Negate the government's intervention against the press: preamble to weigh the letter

c; Article 15 paragraph (3), (4) and (5) and so on.

Provision of LegalFunctions

In accordance with the will of the people, because it provides protection and aguarantee of press freedom, Terms of sanctions imposed on the press is also quite

light, namely criminal fines.

The formulation of theLaw The provisions on defamation and slander is still not regulated in detail and multipleinterpretations, giving rise to different interpretations in the press for dispute

resolution.

Source: Adapted from Triya Indra Rahmawan Triya Thesis entitled Character Legal Setting Product Releases in

Transition to Democracy in Indonesia, Faculty of Law Brawijaya University of 2010.

26Law, Economics, Politics, Culture, History, Social

27 Interests of the majority and minority groups28 Indriyanto Seno Adji. (2008).Hukum dan Kebebasan Pers. Jakarta: Diadit Media, page 1429

Primordial subjective attitude, making individuals or groups have the attitude of ethnocentrism, that is an

attitude that tends to be subjective in view of the culture of others. They will always look at the culture of others

of its cultural spectacles. Finally, the individual will always uphold its class identity is higher than the other

group (group ego trapped), easily pitted sheep, swindled by the transfers issue.30Philippe Nonet dan Philip Selznick. (2008), translations editions, Law and Society in Transition: Toward

Responsive Law. Bandung: Nusa Media. Page 83-84


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Among the three types of law and the table above, the most suitable type of law to

match with the type of free and responsible press in the middle of Indonesia's plural society

and sensitive in terms of "religion" is a third type of law, the responsive law.31

Nonet and

Selznick said that responsive law promises a lasting institutional order and stability. Legal

responsive results-oriented, the goals to be achieved outside the law. Legal product that is

responsive character making process is participatory, that is invite as much participation of all

elements of society, both in terms of individuals, or groups in society and also the

aspirational nature that comes from the desire or the will of the community.

Restrictions on press freedom of expression really needs to conduct to avoid the term

"excessive". These kinds of restrictions on freedom of expression contained in the

Convention of the press on the Freedom of Information 1985 in Rome, when news of the

press which substantially contain:32

a. National security and public order;b. Expression to war or to national, racial or religious hatred;c. Incitement to violence and crime;d. Attacks on founders of religion (attack on the founder of the religion that cause

violation of the offense "blasphemy");

e. Public health and moral;f. Rights, honour and reputation of others (the rights, dignity and good name of a

person, which generally includes "contempt offense");

g. Fair administration of justice (generally concerned with offenses involving thecourts then is a form of countempt of court).

In the press law itself sanctions punishment for the press who violate the provisions in

the Article 5 paragraph (1) of the Press, "the national press is obliged to proclaim the events

and opinions with respect for religious norms and a sense of public decency and the principle

of presumption of innocence." has been provided for in the Article 18 paragraph (2) Press

Law, which reads, "Company of the press in violation of the provisions of Article 5

paragraph (1) and paragraph (2), and Article 13 shall be punished by a maximum fine of Rp.500,000,000.00 (five hundred million rupiah)." Sanctions punishment in the form of fines

reflect that the Act No.40 of 1999 on the Press, eliminating the paradigm of the use of

criminal law against the press which led to criminalization. Also, arrangement the

establishment of the independent Press Council as mandated in the Article 15 paragraph (1) -

(7), has provided an opportunity in creating a life of independence of the national press. Birth

31

It should be underlined that according to the above table, the type of press law still has not been responsive32Indriyanto Seno Adji. Op.cit.,Page 59


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of Press Council is expected to develop a free press freedom and responsibility in the life of

religion and faith in Indonesia.

With regard to the number of cases (read: five cases) journalist who gets a charge of

"blasphemy religion" as defined in article 156a of the Criminal Code. Then came the

question, why not use the Press Law? Why must use the Criminal Code?.

Controversy regarding this press release regarding criminal settlement mechanism,

whether through the criminal justice first, or through the right answer first. Of this there are

two opinions. The first opinion of the press, while the second from the press circle instead.

The press believes, that in the Law on the Press actually has regulated press offenses

resolution mechanisms, namely the first through the Right Answer. If the right answer can

not solve the problem, the Press Council was asked as a mediator. If the Press Council effort

failed, new problems are brought to justice. Thus, efforts to sue the press to court without

going through a mechanism was considered to violate the provisions of the Law on the

Press.33

Second opinion, come from not the press. Judge Zoeber Djajadi, that the Right

Answer as provided in the Article 5 paragraph (1) Law No.40 of 1999, "The press must serve

the Right Answer", can be used, can also not be used by parties who feel aggrieved by the

news. "His name is just right. Rights that can be used, can not. Your not entitled to anyway.

That's right, but not the obligation, so that it can distinguish between rights and

obligations."34

Disagreement over the beginning of the provisions of Law No. 40 of 1999 on the

Press itself, which is not expressly set on this criminalization of the press. Should if we

want to protect the press as a whole, but still based on the appreciation and respect for the

Indonesian Pluralistic Society in terms of religions and beliefs, then the Press Law needs to

be revised to make the Chapter, Article and Paragraph that expressly regulates the dispute

settlement mechanism or legal proceedings in case the press is accused of the crime of the

press (press offenses).

For example if you want to provide protection in Article 5 of the press, the Press Law

should be emphasized that the offense against the press can only be applied if it is done right

answer and mediation with the Press Council; "There is no crime of the press prior to the

Right Answer and mediation with the Press Council. " Then, when it went to court, the court

33 Discussions with "Abel" (Abdi Purnomo), Chairman of the Alliance of Independent Journalists (AJI) period

on 2010-2011 Malang Public Discussion " Reforestation Student Press" on May 28, 201134Tjipta Lesmana. (2005). Kebebasan Pers, antara Indonesia dan Amerika. Jakarta: Publisher Erwin-Rika

Press. Page 18


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concerned shall use the SEMA (Surat Edaran Mahkamah Agung/Circular Letter of the

Supreme Court) No. 13 dated December 30, 2008 which contains a plea for the release of

judges handling cases inviting expert witnesses from the Press Council. One of the points is

in the handling of cases related to press offenses should hear the testimony of the witness

panel of experts from the Press Council, because it knows the ins and outs of the press in

theory and practice.

In addition to the Press Law should be revised, have also conducted a review of the

definition of blasphemy and/or defamation of religion in the Criminal Code. It is necessary

remember consideration of equation/confusion of the definitions of religious blasphemy with

hatred speech by the Constitutional Court decision in the ruling that rejected the petition to

repeal blasphemy laws.

In this case, the expectations of law enforcement officers, especially the air-show in

the judiciary, such as the Public Prosecutor, Legal Advisor, Judge and the Registrar, has the

knowledge and be able to clearly distinguish where the act which is said to be a religious

blasphemy or a statement of hatred.

Thereafter, law enforcement officials are also expected to further explore and study

the facts of pluralism in Indonesia, recognize and acknowledge that not only there are six

religions in Indonesia.

Article 27 of the International Covenant on Civil and Political Rights, which reads:

In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the

other members of their group, to enjoy their own culture, to profess and practise their

own religion, or to use their own language.

In addition to improving the "umbrella law", members of the press also must conductan internal evaluation of the press itself, and to socialize holistically about Journalism Ethics

Code, which reads, "Indonesian Journalists do not write or broadcast news based on

prejudice or discrimination against someone on the basis of differences in ethnicity, race,

color, religion, sex, and language and not demean the weak, poor, sick, disabled or

handicapped people."35

35 Article 8 of the Code of Ethics of Journalism, signed by 29 organizations of the press in Jakarta, March 14,

2006. Press Council to define through Decree No. 03/SK-DP/III/2006 who then passed as the Press CouncilRegulation No. 6/Rule-DP/V/2008


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Conclusion

The tension between the press and religious freedom expression of the press has

always been the object of interest to be discussed. The press said as a mouthpiece for the

people instead assessed hurt the feelings of the people for committing contempt, defamation

or desecration of religious and/or beliefs adopted. Associated with it, the author concludes

that:

1. To realize the press freedom of expression that coincided with the attitude ofappreciation, respect to values and religious norms that exist in society, the

government should immediately revise the Law No.40 year 1999 on the Press and

conduct in-depth study on the interpretation of religious defamation by the law

enforcement law.

2. Members of the press in performing the task of the profession is expected stillcling to the pillars of the buffer, the idealism and professionalism that upholds the

ideals of upholding the basic values of democracy and human rights and respect

for diversity.


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Ibn Qoyim.Local Religion and Views of Life: Religion Kaharingan The Dayaks in Borneo

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adherents of Religion Tolotang Patuntung, Sipelebegu (Permalim), Saminisme

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People of Religious Tolerance Down (Toleransi Umat Beragama Turun), by Icha Rastika

(January 17, 2011), accessed from sites

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Pluralism Press Can not Be Saved(Pluralisme Pers Tidak Dapat Dihindari), accessed from

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Polisi%20Periksa% 20Kasus% 20Penghinaan% 20Agama% 20oleh%

20Majalah% 20Tempo

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accessed from the official website of Reporters Without Borders,http://en.rsf.org/

THESIS

Triya Indra Rahmawan Triya Thesis entitled Character Legal Setting Product Releases in

Transition to Democracy in Indonesia, Faculty of Law Brawijaya University

of 2010.

REGULATIONS

Constitution Indonesian Republic State of 1945

Law No.1 of 1965 on the Prevention of Abuse and / or Religious Blasphemy

Law No.39 of 1999 on Human Rights

Law No.40 of 1999 on the Press

Law No.12 of 2005 on Ratification of the ICCPR

Convention on the Freedom of Information in 1985

Universal Declaration of Human Rights (UDHR) of 1948

Book Criminal Law (Penal Code), Indonesia

PICTURE

Tempo Magazine Cover, accessed from sites

http://kristen.variousforums.net/search?search_author=GSJA_Kediri&show_results=post

Scripture

Al-Quran


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LIST OF TABLES

Table 1 Religions and Beliefs Flow in Indonesia

Table 2 The case of religious desecration/ blasphemy in Indonesia

Table 3 Characteristics of Law No.40 of 1999 on the Press

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Maintaining Freedom Expression of the Press in a Sensitive Religious Society

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