Restrictions on Ownership and Control of Private Broadcasting in the Broadcasting Law Constitutional

Restrictions on ownership and control of private broadcasting institutions (LPS) by one person or a legal entity, both in the broadcast area and in some areas of the broadcast, as stipulated in the Broadcasting Act is declared unconstitutional by the Constitutional Court. This was noted in Decision No.. 78/PUU-IX/2011, read by nine Constitutional Court on Wednesday (3/10) at the Plenary Court.

The Court stated, the arguments of the Petitioners in this case the law unreasonable. "Declare reject Petitioners' petition for all," said Chairman of the Constitutional Court, Moh. Mahfud MD when reading the verdict.

According to the Court, all the terms and restrictions are in compliance with the constitutional mandate to do the restriction or control of radio frequencies as a limited natural resource. Based on some relevant legislation, the Court argued, did not find any interpretations of norms that give rise to legal uncertainty setting restrictions on ownership and control of radio frequencies.

Even so, the Court asserted, does not ignore the possibility of a transfer of control of LPS without diversion Broadcasting Operation Permit (IPP), because of the shift of ownership and control of LPS may also occur through the transfer of ownership. "In such cases, according to the Court that such transfer of shares of the company can be justified as long as not exceed the ownership and control of LPS as stipulated in laws and regulations," wrote the Court in the judgment as thick as 718 pages.

The transfer of such shares, said the Court, does not cause switch or berpindahtangannya IPP. Since IPP retained by LPS legal entity concerned. In a limited liability company law regime, there is a separation between wealth strictly legal entity with a wealth of shareholders. This means, IPPs owned by LPS is a wealth / assets of legal entities and broadcasters are not attached to the stockholders.

Therefore, it can not be interpreted to mean that with the change of shareholders, it has also been a transfer of IPP. "In this case, the position and role of the regulator is very important to monitor any violation of restrictions on ownership and control LPS. Violation of the rules in practice is a matter of implementation of norms that is not an issue of constitutionality, "said the Court.

In addition, the Court warned, mastery IPP centered on a legal entity or individual should be avoided. "Because this could lead to a monopoly of information and potentially creating control public opinion by certain parties."

The Court, the Broadcasting Act has provided the door for people to object to the Indonesian Broadcasting Commission (KPI) if there is a program that is considered detrimental to the broadcast community / individual. "The provisions concerning the composition of the substance of the program including the program to be followed by LPS to ensure the diversity of broadcast material (diversity of content) and the jurisdiction of KPIs to monitor and enforce such provisions have been clearly set out either in Law 32/2002 and in Regulation 50/2005 , "said the Court.

Previously, the applicant consisting of: Alliance of Independent Journalists (AJI) Jakarta Legal Aid Institute Press (LBH Pers), Media Link, Media Monitoring Regulations and regulators (PR2Media), and Foundation for Twenty-Eight (Y28) test of Article 18 paragraph ( 1) and Article 34 paragraph (4) of Law 32 of 2002 on Broadcasting.

Different Opinions

In this decision, there is a different opinion (dissenting opinion), by two Constitutional Court. They are Vice Chairman of the Constitutional Court and the Constitutional Court Achmad Sodiki Harjono.

Sodiki, in his dissenting, argued, Article 34 paragraph (4) of the Broadcasting Law which states "Permit Operation of Broadcasters banned transferable to other parties" must be read in the same breath with Article 18 paragraph (1) of the Broadcasting Law. That is, the alienation is not an LPS concentration of ownership and control by one person or a legal entity, both overt and covert, both in the area of broadcasting and broadcast in some areas leading to and ownership concentration that are monopolistic, as opposed to the constitution .

According Sodiki, broadcasting can be seizing the arena or arena of economic resources in the public space. No wonder that the public has become a lucrative commodity. This will be to shift the democratization processes are honest (substantive). Where the information specified amount of capital owned by individuals or legal entities because it is not fair and democratic, said Sodiki, if access to the media is dominated by those who only economically strong.

"Therefore, Article 18 paragraph (1) of the Broadcasting Law can be defined as the process or result of monopoly should be declared contrary to the 1945 Constitution. Jikalaupun no limits specified in clause should be interpreted along the border can prevent monopoly, "said Sodiki

The Harjono, said she was the same in principle with the view of the Court states that prohibit the concentration of ownership and control by one person in the utilization of radio frequency spectrum in order to create substantive justice to realize the maximum benefit of the people and the implementation of the national economy in a democratic manner. However, according to him, should the Court gives conditional constitutional ruling.

"Should the Court stated that Article 18 paragraph (1) of Law No. 32 of 2002 on Broadcasting is understood that all the conditional constitutional individual ownership either direct ownership of the shares of private broadcasting institutions or indirect ownership through stock ownership is legal owner of Private Broadcasting should be limited, both in the broadcast area and in some areas of the broadcast, "said Harjono. According to him, amar like this has a stronger normative levels. (Dodi / mh/

Wednesday, October 03, 2012 | 18:48 WIB 122