Nature of freedom of Expression Press in the Indonesian Constitution

Nature of Freedom of Expression Press in the Indonesian Constitution

By

Sukma Wijaya Hasibuan

Law Student of UIN Syarif Hidayatullah Jakarta 

The adage says Vox populi vox dei that the voice of the people is the voice of God, one of the values contained in this principle is that the aspirations of the people are the fundamental basis in the nation and state. Sociologically, the concept of freedom of expression is a representation of human rights or human rights instruments, be it international human rights instruments as well as regionally. one destination tree from freedom of expression is for create room for exchange idea about ideas, arts, literature, academics, politics, religion, science and so on which are a reflection of the essence of the existence of each individual. [1]Rene Descartes, a philosopher from France, once said the term Cogitu Ergo Sum which means "I think, therefore I exist". The paradigm that is built that the power of the way of thinking will determine life, which also explains that we live, then the only thing that is certain in this world is one's own existence. This existence can be proven by the fact that he can think for himself.

 

Humans are social creatures or zoon politicon as emphasized by the philosopher Aristotle that humans are in principle as creatures who want to get along in society. As social beings, the instrument in developing the potential of each individual's freedom of expression is very fundamental. This is because humans will have mutual interests or interests that must be protected, as the adage says, ubi societas ibilus , where there is a community, there is law. This postulate contains the depth of meaning that the law lives from, by and for the community.[2] 

 

So that a democratic country based on the fundamentals of the will of the people as stated in article 1 paragraph (2) of the 1945 Constitution where the meaning of people's sovereignty is essentially for the sake of creating a space full of harmonization and mutual benefit.

 

While philosophically the principles of Human Rights can be divided into two namely Derogable Rights or human rights which can be reduced or limited by the state in certain circumstances and Non-derogable rights are human rights that cannot be reduced under any circumstances, including in a state of war, armed conflict, and/or an emergency. [3]The position of the right to freedom of expression or freedom of thought is part of the right to freedom of mind and heart as stipulated in Article 28I Paragraph (1) of the 1945 Constitution which places the right to freedom of thought and conscience as part of human rights that cannot be reduced to non-derogables. rights .[4]

 

Juridically, the principle of freedom of expression is emphasized as contained in article 28 and Article 28E paragraph (3) of the 1945 Constitution of the Republic of Indonesia ( UUDNRI 1945), which states " everyone has the right to on freedom associate , assemble and issue opinion " . [5]Then it is also regulated in 14 Decree of the People's Consultative Assembly of the Republic of Indonesia Number XVII/Mpr/1998 Concerning Human Rights that everyone has the right to freedom of expression of thoughts and attitudes according to conscience.[6]  

 

Furthermore, it is further regulated specifically through Article 1 paragraph (1) of Law Number 39 of 1999 concerning Human Rights that Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts. which must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human dignity. In addition, in Article 1 of the Universal Declaration of Rights, basic Humanity (UDHR) states " everyone is born " independent and have equal dignity and rights . They blessed mind and heart conscience and should get along one each other in brotherhood ".[7] 

 

Next universality freedom expression set in Article 19 Universal Declaration of Rights basic Human Rights (UDHR), which states , " Everyone has the right " on freedom have and issue opinion ; in Thing this including freedom adhere to opinion without get distraction , and for seek , receive and convey information and opinions with method anything and with no looking at boundaries s.[8] Right on freedom express and think is right for express in a manner free beliefs and opinions through words ( in oral ), written , printed , pictures and methods certain .[9] 

 

Departing from the discussion holistically and comprehensively, freedom of expression is an inseparable unit in social life so that it becomes a fundamental attribute in human rights, because every individual can express his thoughts and opinions according to his conscience and the right to obtain information is a right. very essential human rights, which are needed to uphold justice and truth, promote public welfare, and educate the life of the nation. [10]So the state must guarantee the basic principles in the nation and state. It is also expressly ratified through Resolution Assembly UN General 48/121 on The Vienna Declaration states: 

 

(a) " all countries have obligation To do universal respect for, and obedience as well as protection against, all right basic man and freedom fundamental for all in accordance with Charter union Nations, instrument other related with right basic people and law international . Universal nature of rights and freedoms this is sure; (b) Community International Public must treat right basic man globally with fair and equal way, with equal footing, and with the same emphasis.

 

So that the task of the state in a democratic country is reflected in the existence of legal protection, especially on freedom of assembly, expression of opinion, and open discussion. [11]In addition, the instruments in the concept of freedom of expression are certainly owned by all individuals in the nation and state, such as freedom for seek, receive and give information and ideas in form whatever, regardless from limit, ok in form speech , writing, and print, in form art, or through any media or platform that he select. Besides that, freedom expression regarding rights somebody for offend, criticize, comment or speak about other people, including aspects of life personal they are personal or known to the public, with or without agreement them. 

 

Realizing the importance of freedom of expression as an element of democracy, prior to the ratification of the Universal of Human Rights in its first session. The United Nations General Assembly through Resolution No. 59 has previously stated that "the right to information is a fundamental human right. The standard of all freedoms is declared 'sacred' by the United Nations". The Universal Declaration of Human Rights has outlined the common understanding of all people in the world regarding the inalienable or infringing rights that every human being has. Furthermore, with regard to freedom of expression, there is an appropriate covenant, namely the International Covenant on Civil and Political Rights (ICCPR). The Covenant regulates essential democratic rights. Individual freedom to improve the quality of life, participation in politics and freedom of expression are clearly closely related to democracy.

 

This is in line with the adage that says Vox populi vox dei that the voice of the people is the voice of God, that the aspirations of the people are very important in the nation and state so that people's sovereignty in a democratic country is the fundamental key in the progress of a nation. The press is essentially a part of the people themselves who then convey their expression to the public as an intellectual actor and as a connector of people's aspirations.

 

The press as a subject or parties that are part of the profession, especially in the freedom of expression in a lex specialis manner, is regulated through an organization namely the Press Council, where the juridical basis is regulated through Article 1 paragraph (1) of Law Number 40 of 1999 concerning the Press that the Press is institution social and ride communication the masses who carry out activity journalism cover seek, obtain, possess, store, process, and convey information good in the form of writing, sound, images, sound and images , as well as data and graphics nor in form other with using print media, electronic media, and all type available channels. [12]

 

Juridically in article 1 paragraph (2) of Law Number 40 of 1999 concerning the Press, it is explained that press companies are Indonesian legal entities that carry out press business including print media companies, electronic media, and news agencies, as well as other media companies that specifically organize, broadcast, or transmit information.[13] In addition, the function of the press is explicitly stated in Article 3 of Law Number 40 of 1999 concerning the Press that the press national have function as a medium of information, education, entertainment, and control and in paragraph (2) that the national press also functions as an economic institution [14].

 

Until independence opinion, expression, and press is right basic human rights protected by Pancasila, the 1945 Constitution, and the Universal Declaration of Rights basic UN Human . In doing functions, rights, obligations and roles, press honor right basic everyone, because that pers sued professional and open for controlled by the community. For ensure independence press and fulfill right public for get correct information, Indonesian journalists need moral and ethical foundation profession as guidelines operational in guard trust public and enforce integrity as well as professionalism[15]

 

Independence (freedom) will always containing freedom (liberty). Not there is independence without freedom and no there is freedom without independence. The content (substance) of independence pers is press freedom. form freedom pers is freedom communication, freedom opinion and propagate opinion, and other related matters with function pers free. Independence pers is one form freedom (freedom) of expression (freedom of expression ).[16]

 

Regarding the principle of information provided from the press, its juridical benefits are also regulated through Law Number 14 of 2008 concerning Transparency . Public Information also confirms that information is needs tree everyone for development personal and environment social as well as is part important for endurance national.[17] 

 

Because in the principle of rights get information is right basic humanity and openness information public is one characteristic important democratic country that upholds tall sovereignty people for realize good state administration. So that that openness information public is means in optimizing supervision public to administration of the state and other Public Bodies and all something that is in the public interest. Thus that management information public is one effort for develop Public information.[18] So the existence of the press is very important as a means of providing information to the public, which works independently, this is a paradigm that is built on a philosophical concept that press freedom is a manifestation of people's sovereignty based on the principles of democracy, human rights and the rule of law.

 

Then In doing functions, rights, obligations and roles, press honor right basic everyone , because that pers sued professional and open for controlled by the community. For ensure independence press and fulfill right public for get correct information, Indonesian journalists need moral and ethical foundation profession as guidelines operational in guard trust public and enforce integrity as well as professionalism[19]

 

Thus, in an effort to develop press freedom and to improve the life of the national press, an independent Press Council was formed, to protect press freedom, to stipulate and supervise the implementation of the "Journalistic Code of Ethics as well as to provide considerations and seek settlement of public complaints on cases related to press reporting.[20]

 

Regarding freedom of the press, it has actually gained legitimacy on a juridical basis as set forth in Article 4 paragraph (1) of Law Number 40 of 1999 concerning the Press that freedom pers guaranteed as right basic citizen . Next paragraph (2) To pers national no worn censorship , banning or prohibition broadcasting . Paragraph (3) For ensure independence press , press national have right seek , obtain , and disseminate ideas and information . Then paragraph (4) In take responsibility front news  law , journalist have Right to Reject.

 

Besides that, speaking on the role is also emphasized in Article 6 Press national doing the role as following : (a) Fulfill right Public for knowing (b) enforcing values base democracy , encourage realization supremacy law and rights basic Humans , as well respect diversity ; (c) develop opinion general based on precise , accurate and correct information ; (d) do supervision , criticism , correction , and suggestions for related things _ with interest general (e) fight for justice and truth[21]

 

Based on this postulate, perspective right basic , aware or no aware that the right to freedom of expression is "as" right natural rights" ( natural rights ) including different opinion is one of the " inalienable rights ". Where that s every is effort injure right different opinion as well as expression is is violation right basic human . From paradigm In democracy , there are at least two concepts that we always use, namely "freedom" or" liberty" and the concept of " rights ". or guarantee on diversity ". Draft freedom or independence ( liberty, freedom ), contains meaning  " someone " free To do all something throughout no violate the freedom of others." In John Locke's expression is said : " limits " freedom a is the freedom of others." In the context of the rule of law , freedom that contain meaning , " someone " free To do or no To do something throughout no there is the law that limits it . " [22]

 

For this argumentation building, legal protection is very important by implementing mechanisms for protection itself, which is a function and responsibility of the state for the fulfillment of human rights, which is actually the responsibility of the state with regard to human rights. with Right Fundamental Human (HAM) is to protect ( to protect ), to respect ( to respect ), and for fulfill ( to fulfill ) .

 

This explains explicitly that a rule of law must be able to provide protection for the rights of its citizens as a fundamental instrument in a democratic state based on law, where there is an obligation to obey the constitution in the practice of national and state life, so that the constitution is not just a sacred document. which is beautifully stated in the text, but really as a representation of the form of the protection and limitation of structured and systematic and institutionalized political and governmental power.[23]

 

Apart from that, freedom of opinion, freedom of expression, and freedom of the press are human rights protected by Pancasila, the 1945 Constitution, and the United Nations Universal Declaration of Human Rights. Also for the existence of cyber media in Indonesia which is a part from independence opinion , independence expression and independence pers[24]

 

Therefore protection to journalist in operate Duty journalism has Becomes international obligations . Rights Council basic Man union United Nations Human Rights Council in Vienna, Austria, in agreed resolution whole member September 27, 2012 for first confirmed importance safety journalist as fundamental elements of freedom expression. In resolution that, the Rights Council basic Man calling for to countries in the world to " develop " safe environment for journalists who make it possible they could doing profession in a manner independent." Resolution it also calls for prevention impunity for perpetrator violence to journalist with To do investigation that is not impartial, fast, and effective.[25]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Bagir Manan, Press, Law and Rights basic Human . National Library of Indonesia , Jakarta: 2016

 

Bekti Nugroho Samsuri, Qualified Press for Smart Society . Press Council, Jakarta: 2013

 

Charles Tilly, Democracy , New York: Cambridge University Press, 2007

 

IDG Palguna, Constitutional Court Rationale, authority, and comparison with other countries. (Press Constitution: Jakarta, 2018)

 

Kersti Ahlgren , Freedom of Artistic Expression An Analysis of Pactices between Estonia and Finland, 2019, Thesis, Faculty of Law, Lund University

 

Muhammad Roqib, et al . Right on Freedom Expressing and Opinion in Indonesia with in the United States, Journal of Legal Perspectives, Vol 20 No. May 1, 2020

 

Zainal Arifin Mochtar and Eddy OS Hiariej, Basic Law of Understanding Rules, Theory, Principles and Philosophy of Law , Erlangga: Yogyakarta, 2021

 

 

Legislation

 

1945 Constitution

 

Universal Declaration of Human Rights (UDHR)

 

Decree of the People's Consultative Assembly of the Republic of Indonesia Number XVII/Mpr/1998 concerning Human Rights

 

Decree of the People's Consultative Assembly of the Republic of Indonesia Number XVII/Mpr/1998 concerning Human Rights

 

Considerations Considering Law Number 14 of 2008 concerning Public Information Disclosure

 

Law Number 14 of 2008 concerning Public Information Disclosure

 

Law Number 39 of 1999 concerning Human Rights.

 

Law Number 39 of 1999 concerning Human Rights.

 

UU no. 14 of 2008 concerning Openness Public Information

 

UU no. 14 of 2008 concerning Public Information Disclosure

 

Law Number 14 of 2008 concerning Transparency Public Information

 

Law No. 32 of the Year on Broadcasting

 

Law Number 40 of 1999 concerning the Press

 

The preamble to Dewa Press Regulation Number: 01/Peraturan-DP/VII/2017 concerning Procedures for Complaints to the Council of Persuasion

 

Dewa Press Regulation Number : 01/ Regulation -DP/VII/2017 Regarding Procedure Complaint To the Press Council

 

Press Council Regulation Number 1/Peraturan-DP/III/2012 concerning Guidelines for Covering Cyber Media

 

Press Council Regulations Number 1/ Regulation -DP/III/2012 Regarding Guidelines Cyber Media Coverage r

 

Press Council Regulation Number 1/Peraturan-DP/III/2013 concerning Guidelines for Handling Cases of Violence Against Journalists

 

Press Council Regulation Number 1/Peraturan-DP/III/2013 concerning Guidelines for Handling Cases of Violence Against Journalists

 

Preamble to the Press Code of Ethics

 

Preamble to the Press Code of Ethics

 

KOMNAS HAM Complaint Handling Procedure

 

KOMNAS HAM Complaint Handling Procedure