Sunday, March 28, 2010
Indonesia's Broadcast Freedom Must Be Safe From China’s Meddling
Earlier this week, government authorities closed down Radio Era Baru, a radio station in Batam. The official reason: shortage of radio frequencies. Another view is that the closure is related to China’s opposition of the radio station’s links to and funding by the Falun Gong movement. In a letter addressed to the Ministry of Foreign Affairs, China warned of damage to Indonesia-China relations should the radio station not be shut down.
Whether or not a shortage of frequencies was merely a pretext remains to be investigated, but there is ample reason to be skeptical. The station was denied a license in 2007. If the shortage was real, why was it allowed to broadcast for the last three years? When its license was denied, why wasn’t a reason provided and why did claims of a shortage appear after public uproar? Many stations operate without a license. Why single one station out? Why not reorganize the frequencies during those three years, as was done in Jakarta a few years back? The radio station’s legal appeal has reached the Supreme Court and a decision is expected soon. Why deploy police to clamp down on broadcast freedom on the eve of a decision that might render such an extreme intervention unnecessary?
If the allegation against China is true, China’s intervention is offensive and the decision from Indonesian authorities is shameful. This is a critical issue and needs to be addressed using legal and quasi-legal remedies. Legal remedies can address the issue domestically, but to sanction China, more creative quasi-legal remedies are needed.
Allow me to explain.
The argument is that the government’s closing of the radio station for reasons related to its links with Falun Gong violates Indonesia’s constitutional right to expression (Article 28) and is thus unconstitutional. A potential problem is that since Article 28 has not been litigated much, it is unclear what the boundaries of this freedom of expression are.
To solve this, the courts should look to international law for guidance, in particular the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, which Indonesia has ratified. Given the near universal acceptance of the declaration, at least some of its provisions have reached the status of “customary international law.” This means that all countries, even those not members of the UN, can now be bound by those provisions.
The ICCPR’s guarantee of the right to expression is broad enough to be used in this case. Article 19 states that “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…through any other media of his choice.”
While the ICCPR does allow the limiting of expression when necessary for the protection of “national security,” it was held that it does not allow nations to prohibit speech just because it advocates the ideology of a political enemy. China should take note.
The treaty’s operative principles imply that countries have positive and negative obligations — this would include having in place licensing procedures that are consistent with the principle of free expression and that prohibit the use of police to crack down on violations. These two legal remedies — our Constitution and the ICCPR—should provide generous grounds for the protection of Era Baru’s rights. However, these measures do not facilitate possible Indonesian sanctions against China. Domestic courts and ICCPR remedies have no teeth against other countries. For this, we turn to quasi-legal measures.
The idea here is to use trade sanctions to compel trading partners to adhere to principles that they have agreed to in nontrade agreements, in this case the Universal Declaration of Human Rights. This would require framing freedom of press and censorship not as an issue of free press but rather a violation of WTO rules on free trade of “market access” and “national treatment.”
In a case where China censored its press by prohibiting foreign media companies from operating in China, the WTO panel concluded that these measures were inconsistent with China’s obligation under the national treatment and market access clause of the General Agreement on Trade and Tariffs.
The idea of framing violations of free press in terms of violations of trade law has gained more and more acceptance. The European Union passed a proposal that would require member countries to classify any Internet censorship as a barrier to trade, and would require that the issue be raised in any trade negotiations. Linking trade with press law is similar to the way in which trade is linked to environmental and labor standards — we do this all the time.
In light of the Asean-China Free Trade Agreement, this is a crucial point. Even though this trade agreement is separate from the WTO, there are significant parallels. China has much to gain from the establishment of a free trade area. If it is to reap the benefits of trade, it must not be allowed to pick and chose. Free trade comes in a package. With access to an enlarged market to which China is able to export its goods, it must also eliminate barriers to trade, which includes censorship and violation of free press.
Many in Indonesia complain that its domestic industries are not ready to compete with China. Proponents of trade argue that only when they are forced to compete will they then be ready. Now it is China’s turn to complain that they are not ready for free speech. To this we should say: sink or swim. We need a thorough investigation to determine the real reasons for the radio station’s closing. If it turns out to be true that the closure was related to pressure from China, a strong stance needs to be taken. A free press at home can be protected using legal remedies. As for getting our point across with China, we need to resort to trade law. Jakarta Globe