Make-Believe: Indictment of Two Activists Reveals the Truth About Freedom of Expression in Indonesia

by | May 4, 2023

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About Rafsi Azzam Hibatullah Albar

Rafsi is an undergraduate law student at Universitas Gadjah Mada, Indonesia. His interest lies at the intersection of international, administrative, and constitutional laws. Aside from writing and researching, Rafsi is a teaching assistant in administrative law and an editorial board member at Juris Gentium Law Review. Outside of class, Rafsi channels his passion for education through FlashCampus, a platform for Indonesian students to prepare for post-campus life.

On 3 April 2023, the trial of two Indonesian activists, accused of defamation by the Minister of Maritime and Investment Affairs, began. The defendants, Fatia Maulidiyanti, Coordinator of the Commission for Missing Persons and Victims of Violence (KontraS), and Haris Azhar, Executive Director of Lokataru Foundation, attended the indictment hearing after their charges were confirmed on 3 February 2023.

The case is yet another example of defamation lawsuits based on the infamous Electronic Information and Transactions Law (ITE Law). The offence of defamation under Article 27(3) of the ITE Law is the distribution of information by electronic means with intent and knowledge that the information is defamatory.

The basis for the claim is a 2021 Youtube video uploaded on Haris’ channel that featured Fatia as a guest. In the video, they discussed the likely ties between a mining company where the minister is a shareholder in and a gold extraction operation in Intan Jaya, Papua which is rife with militarism. Claiming to have vetted reports from multiple trusted organisations, they stated that multiple officials – not just the Minister – are involved.

This new development confirms that defamation laws in Indonesia pose a threat to freedom of expression.

First, the defence of truth could apply in the present case. It is still unclear whether the allegations made by the activists, derived from notable sources, were unequivocally proven as false. The defence of truth applies in Indonesian law in accordance with Article 28E(3) of the Indonesian Constitution (freedom of expression). While the freedom of expression admits exceptions for the protection of the rights or reputation of others, opinions generally cannot be defamatory, and the defence of truth is widely accepted in international human rights law.

Second, the intent of the activists has not been clearly established. Though there is no doubt that the video was intentionally widely distributed for public consumption, the prosecution must also prove that the statements were ill-intended to defame the minister. Article 44 of Law No. 39 of 1999 on Human Rights provides additional protection to citizens who voice their concerns and express opinions demanding a clean, effective, and efficient government.

Fatia and Haris’ work as activists is a public service – they are holding government officials accountable for their actions. Civil society support was clearly visible as demonstrations accompanied the trial with banners stating #kamiBerhakKritis (we deserve to be critical).

Investigative journalism is especially put under threat as dissenting voices get silenced using defamation lawsuits. A culture of fear and self-censorship is formed when activists and journalists are threatened for speaking up against powerful individuals or institutions. Not only will democratic values and accountability be undermined, the lack of involvement by civil society also gives leeway for corruption and wrongdoing.

So far, the case has been a prime example of the politically convoluted protection of the freedom of expression in Indonesia, especially when high-level officials are involved. Alarmingly, the idea of public interest was not well-entertained in stages prior to the indictment. If the trend continues in the prosecution and up to the judgement, the future seems bleak for the nation’s more than 270 million minds.

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