Even in the face of strong public protest over a set of proposed revisions to criminal laws that infringe Indonesians’ free expression rights, the Indonesian Ministry of Law and Human Rights last month sent to the Parliament a new draft of the Criminal Code (CC) that threatens to further chill political dissent and civic participation. In particular, it contains provisions that criminalize defamation and insult of public officials, including the President and members of the government.
Indonesians deserve a reformed CC that protects fundamental rights to express their opinions, including criticizing and disagreeing with elected officials and the government. The new draft instead robs people of these rights. EFF joins its global partners in calling on the Indonesian Parliament to hold inclusive and meaningful public consultations and revise the new draft CC in line with Indonesia’s international human rights obligations.
Lack of Meaningful Public Discussions
The CC, a law with Dutch colonial legacy, has been in reform since 1958. One of the latest drafts was introduced in 2019, when the government announced that a new code would be adopted soon—without ever making it public. That sparked protests, forcing the government to release the draft code, which in turn prompted massive demonstrations across Indonesia about the code’s infringement on free expression. The public was concerned with a number of provisions, ranging from criminalizing adultery and blasphemy to the impact on minorities and civil society. The government did not move forward with that draft.
The Indonesian government now has a track record of failing to hold public consultations around amendments to the CC. In June, it announced a new draft CC, and again didn’t release it publicly. After pressure from civil society, the government made the draft of 632 articles public on July 6. It has not organized any inclusive public discussions, instead claiming to have met the requirement of public participation and awareness raising through so-called socialization sessions in only 12 locations in Indonesia.
The Government has been pushing for a swift adoption of the full draft of the controversial new CC, even though it was only made public at the beginning of July. As the draft is already in the Parliament, the only remaining allegedly public forum about it is a question and answer session between lawmakers and the Government, in which the public is not allowed to participate. This means that Indonesians and local civil society organizations haven’t had any meaningful avenue to raise their concerns, provide input, and participate in shaping one of the most important and consequential laws in Indonesia.
In the beginning of August, Indonesian President Joko Widodo asked the government to seek public opinion about the draft CC, before it is adopted, to raise awareness. This is an important step in the right direction.
No Criminalization of Defamation
Among the most problematic provisions in the new draft CC are those establishing criminal punishment, including imprisonment, for defamation and insults against the President and Vice President, the government, and public authorities and State institutions. Defamation laws usually are aimed at protecting individuals from reputational harm. Civil defamation laws allow injured parties to sue and ask for an apology or seek monetary compensation. Criminal defamation laws, on the other hand, are used as a hammer to silence people and disproportionately restrict freedom of expression.
While Indonesia is trying to turn a page on its colonial past, these provisions were previously used to forbid people from expressing their dissent and disappointment towards the authorities. Moreover, the provision on defamation and insult against the President and Vice President was historically used to protect the dignity of the Queen, also known as lese majeste. The Indonesian Constitutional Court has declared this article unconstitutional, claiming it is a “colonial legacy,” that violated freedom of expression, access to information, and the principle of legal certainty. Genoveva Alicia Karisa Shiela Maya, researcher at the Institute for Criminal Justice Reform, told EFF:
“It seems that the Government has read this judgment differently, as they continuously try to defend the existence of this article in the draft. In the recent development of the Bill of Penal Code draft, the Government has provided a longer elucidation for this article (now, Article 218) which gives guidelines to differentiate between “defamation” and “critics”’.
The Office of the UN High Commissioner for Human Rights (OHCHR) criticized similar lese majeste laws in Thailand, highlighting the chilling effect on free expression and political dissent in the country. Yet, criminal defamation and lese majeste laws are being used against Indonesian journalists who cover issues of public interest involving government officials or members of the Indonesian royal family.
For example, in March 2020, Mohamad Sadli, the chief editor of liputanpersada.com, was sentenced to two years of imprisonment for an opinion piece criticizing the local government’s road construction project. Amnesty International reported about the arrests last year of at least seven students of Universitas Sebelas Maret in Surakarta in Central Java after they held posters during Widodo’s campus visit, appealing to the President to support local farmers, address corruption, and prioritize public health during the pandemic. These and many other examples illustrate that codification of criminal punishment for defamation and insult against public officials will further chill free expression and political dissent in Indonesia.
To be sure, international human rights laws recognize the right to be free of attacks on one’s reputation. For example, Article 12 of the UN’s 1948 Universal Declaration of Human Rights provides that “no one shall be subject to […] attacks upon his honor and reputation.” Article 17 of the 1966 the International Covenant on Civil and Political Rights (ICCPR) protects against “unlawful attacks on his honor and reputation,” and Article 19 of the ICCPR enlists “respect of the rights or reputations of others” as a lawful ground for restricting freedom of expression.
However, while freedom of expression is not absolute, international human rights standards establish that freedom of expression and opinion are essential for any society, and only necessary and narrowly drawn restrictions on it should be imposed.
The UN Human Rights Committee’s General Comment 34 calls for decriminalizing defamation, noting that “the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” It further states that defamation laws, especially criminal defamation laws, should consider truth as a defense, and “a public interest in the subject matter of the criticism should be recognized as a defense.”
No Criminal Punishment for Criticizing Public Officials
International human rights standards require showing particular restraint in restricting criticism of public figures and heads of state. The UN Human Rights Committee’s General Comment 34 notes that states “should not prohibit criticism of institutions, such as the army or the administration.” It also states that unlawful untrue statements about public officials published in error, without actual malice, should not be penalized.
The 2021 Joint Declaration on Politicians and Public Officials and Freedom of Expression underlined that political speech should enjoy a high level of protection, even the speech that public officials may find offensive or unduly critical. Finally, the UN Special Rapporteur on Freedom of Expression 2022 report underlined that public officials “should expect a higher degree of public scrutiny and be open to criticism.”
During the last UN Human Rights Council’s Universal Periodic Review (UPR) review cycle for Indonesia in 2017, a number of recommendations focused on revisiting or repealing the problematic provisions in draft CC. However, the Indonesian government only doubled down on punishing online defamation in the Information and Electronic Transactions Law (IET), which also provides for a criminal penalty of up to six years of imprisonment. This provision does not contain a public interest exception and disproportionately limits the right to expression and opinion.
As Damar Juniarto, SAFEnet Executive Director, told EFF:
“Indonesia retains most of the defamation articles in the Criminal Code and ITE Law, even though Indonesia has ratified the ICCPR. Even more, the new draft Criminal Code contained several articles relating to blasphemy and inserting provisions that criminalize defamation and insult of public officials, including the President and the government. This situation puts freedom of expression in Indonesia under attack and in danger.”
According to SAFEnet’s 2021 Digital Rights Situation Report, there were more than 30 criminal cases involving 38 victims brought under problematic IET articles, and nearly 60% of all digital attacks in Indonesia targeted human rights defenders, activists, academics and journalists. Two of the criminal cases involved two researchers from Indonesia Corruption Watch, who uncovered links between the head of Presidential staff and the senior management of a company responsible for producing and marketing an allegedly COVID-19 therapeutic drug in Indonesia. Another defamation case involved two human rights defenders, Haris Azhar, director of Lokataru, and Fatia Maulidiyanti, director of KontraS, who exposed a high-ranking senior cabinet minister’s involvement with the problematic gold mining business in the conflict area in Papua. Moreover, heads of Greenpeace Indonesia were reported to the police for having criticized Indonesia’s President about deforestation in a press release.
The human rights situation in Indonesia has been further backsliding in the last decade. The new draft CC introduces new avenues for further encroachment on freedom of expression, freedom of assembly, and access to information. Indonesians deserve better, and Indonesian authorities should recall the new draft CC from the Parliament, organize inclusive and meaningful public discussions, and draft a new CC that complies with international human rights standards.
Categories: Electronic Frontier Foundation