Alliance of Independent Journalists v Minister of Communication asserts that the government’s decision to shut down the internet in West Papua and Papua province was unlawful. Despite not being the first case concerning a government-imposed shutdown, it is considered a landmark case to this day due to its degree of complexity and wide-ranging consequences.

The bulk of the defence proffered by the Government was related to concerns of national security and public order as a part of their mandate under Law No. 11 of 2008 on Electronic Information and Transactions or the ITE Law [p. 112]. This reflects the classic argumentation previously raised in cases from other jurisdictions like Banashree Gogoi v Union of India and Zimbabwe Lawyers for Human Rights v Minister of State, National Security. The government saw fit to quash the protests, which arose following news of racist actions committed against Papuans, by throttling or slowing down connectivity in the region. The Ministry, by way of their own admission through no less than nine press releases between the months of August and September [pp. 81-82], had both throttled and even fully blocked connectivity in parts of the island during the two-month period as a way to deter hoaxes and provocative information reported by various news outlets that were alleged to have caused the series of events [pp. 63-64].

As an organisation that advocates and protects — through legal avenues — journalistic integrity and freedom, AJI dealt with these claims by bringing the State to court. Being one of the few court cases where international law is cited a great amount, two assertions quoting the International Covenant on Civil and Political Rights (ICCPR) were prominent in this case. First, derogations of human rights under Article 4, as provided in General Comment No. 29, can be made chiefly during a state of emergency. Second, as extrapolated by General Comment No. 34, limitations to the exercise of freedom of expression should be done 1) on permissible grounds as provided in Article 19.3 of the Convention, 2) based on the law, and 3) in a proportional manner [pp. 249].

The latter is worth highlighting due to the depth of reasoning by both sides. The condition set out by Article 19.3, with special attention to national security and public order, is often argued in conjunction with the existence of a legal basis. Although the defendants provided several laws that allow for the limitations of freedom of expression and internet connectivity individually, it is evident from the posture of argumentation that correlation between the two is not strong enough, and especially not to such an extent that warrants two months of on-and-off shutdowns. This is even more true when a connection is drawn between AJI’s interests as an entity representing journalists and the accusations thrown at the media. The media, as General Comment No. 34 suggests broadly and specifically in paragraphs 13 through 17, has a special position in conveying information and is an inseparable part of public opinion-making. Independence and accountability as well as accuracy of reports are among the rudimentary principles of the press, so accusations to the contrary are huge claims that could set a precedent for undermining the press’ role in a democracy.

One could not understate how dangerous the repercussions would have been had the court ruled for the defendants. At a time when freedom of expression is often repressed, the last thing Indonesia needs is a judicial branch that fuels the negative framing of the media as untrustworthy. The fourth pillar of democracy needs to be able to do its main job, regardless of medium and interfering motives – that is, delivering truth to the people.

A democratic society, in theory, provides a fertile ground for the effective protection and realisation of human rights. In order to build such a democratic society, the right to vote – based on the free expression of the will of the electorate – must be guaranteed by law. Article 25 of ICCPR plays a fundamental role in ensuring governments are elected based on citizens’ will and consent. In contradiction of this, the Draft law confers on the President the exclusive right to choose a Governor and Deputy Governor. Although Article 10(2) mentions a role for the Local People’s Representative Council in providing opinions or recommendations, such involvement is arguably futile, as only the President has the final say on appointments. Such a violation of political rights under the ICCPR not only eliminates public participation in these elections, but further presents the President with a pandora’s box in which he may install his crony within local government. Thus, the Governor is liable to act according to the President’s needs, and not the people’s aspirations.

Although the Human Rights Committee in Mazon Costa v Spain emphasised that Article 25 of ICCPR does not impose a specific political model or structure, in its Concluding Observations on Swaziland, the Committee highlighted that the concentration of power into one branch is incompatible with Article 25. The withdrawal of the right to vote from the people to the President, without any meaningful intervention from the legislative branch, indicates such concentration of power to the executive. Hence, it is a palpable violation of Article 25 of ICCPR.

The exercise of the rights under Article 25 of the ICCPR may indeed be excluded on grounds which are established by law and which are objective and reasonable. However, the criteria of objectivity and reasonableness are not clear, as they have been decided thus far on case-by-case basis. The Indonesian House of Representatives presented two main reasons for its proposal in the Draft, namely, the expense of elections and the need to increase central government’s effective management of many national assets in Jakarta. While the high cost of elections is not an exclusive problem of Jakarta, the protection of national assets can still be achieved by coordination between central and local government. Therefore, it is clear that the Draft manifestly breaches the rights to participate in public affairs and to vote.

Indonesia has a clear historic example of how the designation of Governor by the President has previously resulted in manipulations of democracy, violations of economic and social rights by means of corruption, as well as the exploitation of local resources during New Order Era. Under Act. No. 5 of 1974, President Suharto (New Order Era) specified the hierarchy of local government and appointed them either directly or through the Ministry of Home Affairs. Hence, the appointed Governor served more as agent of central government rather than the independent leader of an autonomous local government. In the first parliamentary election under Suharto’s rule in 1971, these designated Governors, along with military and civilian bureaucrats, were required to persuade their subordinates and local voters to vote for Golkar (also of President Suharto’s Party). Consequently, the rights to fair election, freedom of expression, and to information were systematically abused. Citizens were accordingly forced to vote for Golkar, while the opposition and its aspirations were suppressed, facilitated by local elites also designated by the President. Through these elites, the President was capable of the mass exploitation of local natural and human resources, producing environmental degradation that still persists today.

These consequences are amplified by the fact that Jakarta – as the current capital of Indonesia – retains a significant role in politics, the economy, and demography. As the most populous city, the decisions carried out by its local government affect 10.68 million inhabitants. Precisely because of the scale of the deprivation of rights proposed by the House of Representative, it is critical that we continue to scrutinise Indonesia’s putative democratic values and civil rights.

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.

Each year on October 11, the International Day of Girl Child is observed to increase public awareness of the problems that girls and young women suffer worldwide. One such issue is child marriage, which has long been practiced as part of local traditions in communities in Southeast Asian countries as well as around the world. In Indonesia, the prevalence of child marriage continues to present ongoing human rights issues. According to the 2018 Socioeconomic National Survey, one in every nine girls aged 20-24 is married before the age of 18. This totals around 1.2 million girls, producing the 8th highest number of child marriages in the world.

In Indonesia, requests for marriage dispensation have increased since the COVID-19 pandemic. Based on data from the Directorate General of the Religious Courts Agency, there were 34 thousand applications for marriage dispensation from January-June 2020. Of that total, 97 percent were granted, while 60 percent of those who apply are children under 18 years old. The basis used by Court judges in determining marriage dispensation is Article 7 paragraph (2) of the Marriage Law, Supreme Court Regulation Number 5 of 2019 and the Compilation of Islamic Law. This compilation cites the main reason for child marriage as the benefit and reduction of harm, considering justice from the perspective of the welfare of the wider community.

In 2019, the minimum age requirement for prospective grooms and brides was raised to 19 years old (under the Marriage Law amendments to the 1974 Act). Article 7 (1) of the amendment explains that marriage is only permitted if the bride and groom have met the minimum age requirement. Yet under Article 7(2), dispensations may be granted on the basis of  “urgent reasons” (without clarifying or restricting this clause), which has resulted in ambiguity and misinterpretation by judges granting marriage dispensation requests. Without a clear explanation of what the urgent reasons constitute, the subjectivity of the judge becomes important. Moreover, the ambiguity of this phrase allows parties who will apply for a marriage dispensation to argue their case on the basis of whichever reasons they deem ‘urgent’.

This situates creates a counterproductive relationship between Article 7(1) and Article 7(2) of the Marriage Law in suppressing the number of child marriages. Whilst other domestic statutory provisions decry child marriage, this gap continues to enable its practice. For instance, Article 10(2) of the Law concerning Sexual Violence Crime, ratified in May 2022, states that forced marriages encompass forced marriages of children, forced marriages in the name of cultural practices, and forced marriages between the victim and the rape perpetrator. However, this law does not comprehensively prohibit all forms of child marriage, such as those marriages which are ostensibly lawful because of a marriage dispensation.

Although the judge assessing a couple for marriage dispensation is bound to assess the physical and psychological readiness of the applicants, as well as the income of the prospective groom for his future family life, these factors alone are clearly insufficient in curtailing the prevalence of child marriage. Indonesia’s high rates of stunting, children dropping out of school,domestic violence, poverty, and divorce as the consequences of child marriage demonstrate some of the many human rights issues arising from child marriage. For instance, data from the Religious Court of Banyuwangi finds that from January to August 2021, there were 4,027 cases of filing for divorce and that these were dominated by those aged between 20 and 30 years, as well as a substantial number still under the age of 20.

Indonesia must address its epidemic of child marriage, clarifying the “urgent reasons” in Article 7(2) of the Marriage Law so that judges in the Religious Courts and the Supreme Court are constrained in the issues they may consider, restricting dispensations to cases of genuine emergency such as unintended pregnancy and the inaccessibility of abortion to unmarried women. More broadly, society’s perception of child marriage must evolve, contradicting the common belief that child marriage solves teenage promiscuity and avoids non-marital pregnancy, while foregrounding the negative impacts and human rights issues which affect girl children in particular.

Want to learn more?

• Read: Mumtaz Bibi v Qasim: Islamabad High Court’s Landmark Judgment on Child Marriage
• Read: Towards Uniformity and Eradicating Gender Disparity: Increase in Legal Age of Marriage for Women

In Southeast Asia, religious minorities face not only religious discrimination, but also serious threats to their security, liberty, and lives. The Christian minority in Indonesia is but one minority in Indonesia that faces significant religious discrimination. The legal system in Indonesia weakens the ability of minorities to freely practice religion. Despite constitutional protection of religious freedom, as of 2010, Indonesia still had “at least 156 statutes, regulations, decrees, and by-laws that restrict religious freedom,” including blasphemy laws and guidelines about foreign aid to religious organizations. Indonesian authorities are often unwilling to interfere when religious minorities face violence.  Local leaders politicize religion, often using laws and rhetoric against minority religious groups. Houses of worship and places of religious instruction are limited; public statements cannot be made against one of the six official religious groups (although they can be made about other non-official religions). These restrictions end up creating de facto restrictions on the freedom of religion, which not only restrict the right but also undermine the effectiveness of its protections.

In Myanmar, with a Buddhist majority of around ninety percent, religious minorities have faced significant discrimination. Restrictions by Myanmar authorities include “unduly restricted religious practice, denied freedom of movement to members of religious minorities, destroyed religious property and texts, denied or failed to approve permits for religious buildings and renovations, and discriminated in employment.” These restrictions represent significant barriers to the right to freedom of religion and have undermined the effectiveness of the right, generally. Most significantly, Rohingya Muslims have faced substantial violence and discrimination because of their religious and ethnic identities. Human Rights Watch reported on extrajudicial killings, enforced disappearances, arbitrary detention and arrests, and rape and other sexual violence amongst the serious human rights abuses. Not only did political and religious leaders know about these actions, there is evidence that they “planned, organized, and incited attacks against the Rohingya and other Muslims with the intent to drive them from the [Arakan State] or at least relocate them from areas in which they had been residing—particularly from areas with the majority Buddhist population.” Such abuses emphasize the significant failure of human rights in Myanmar. The cases of Myanmar and Indonesia provide examples of how the freedom of religion has not been sufficiently protected in Southeast Asia nor has it even been universally accepted as a right.

Generally, the human rights regime is far from perfect, and it has been criticized for its western bias. Nonetheless, the freedom of religion has received limited protection in Southeast Asia, partially due to cultural and ideological differences. ASEAN states have long upheld the principle of non-interference with state sovereignty, even at the expense of the freedom of religion. Additionally, the ASEAN Human Rights Declaration(“AHRD”) does not provide for the right to change religion, nor does it explicitly safeguard minority rights. States are also given significant discretion to restrict rights; ultimately fundamental rights are granted under the AHRD “only insofar as they do not transgress state goals.” The AHRD has been criticized for lowering the standard of protection for the freedom of religion that states are otherwise obligated to follow under the international human rights regime. These factors show the failure of the AHRD and ASEAN states to protect freedom of religion and mitigate the significant human rights abuses occurring in the region. Instead of protecting religion and belief, the right has been wielded as a tool to protect only the religious majority against any religious minorities. Overall, these failings highlight the inadequacies of the current human rights regime and the need to revisit how human rights are defined and protected to reflect the ideological, cultural, political, and economic differences in Southeast Asia.

On 25 May, the Indonesian Parliament finally approved the long-pending revisions to the counter-terrorism law. The revision was initially proposed by the government in 2016 following the attacks in Jakarta, which marked the first Islamic State (IS)-linked attack in Southeast Asia. Similarly, the passing of this new law was triggered by the suicide bombings in Surabaya by attackers with links to the Jamaah Ansharut Daulah, an affiliate of IS, on 13-14 May, which left over 30 people dead and 50 others wounded. These attacks were also particularly repugnant, because of the involvement of attackers’ own children. While its desire to combat the surge in homegrown militancy is not to be doubted, there is good reason to fear that the government may possess a hidden agenda with its new and stronger security approach. Specifically, three elements of the new law stand out as particularly troubling and putting the government on the slippery slope towards the abuse of power, violations of rights, and the undermining of public safety.

The first troubling element concerns the new overly broad definition of terrorism. The new article 1(2) defines terrorism as any act that uses “violence or threat of violence to create a widespread atmosphere of terror or fear, resulting in mass casualties and/or causing destruction or damage to vital strategic objects, the environment, public facilities, or an international facility.”

While there is no internationally agreed definition on terrorism, the Indonesian government goes worryingly beyond what the UN special rapporteur endorses – whereby terrorism is defined as an act committed with “the intent to cause death or serious bodily injury … to provoke a state of terror in the general public … or compel a government.” The definition employed by the new law has created a massive room for the prosecution of peaceful political activities, say, on the premise of property damage.

The second problematic element is the extension of pre-charge and pre-trial detention. Police may now detain terrorist suspects without charge up to 21 days for an initial examination – an increase from three days – while prosecutors extend pre-trial detention up to 240 or 290 days – an increase from 180 days – for a formal investigation.

Not only does this violate the right to liberty under international law, by virtue of the International Covenant on Civil and Political Rights – which states that anyone arrested or detained for a criminal offence “shall be brought promptly before a judge” – but the prolongation of such detention will likely create room for torture and other ill-treatment in custody that may go unnoticed.

The third thorny element concerns the increased surveillance. According to article 31, the authorities may “open, examine, and confiscate mail and packages … and intercept any conversation by telephone or other means of communication suspected of being used to prepare, plan, and commit a Criminal Act of Terrorism.” Such authorisation – particularly if it led to disproportionate mass surveillance – carries a high risk of privacy violations and may pave the way for large-scale abuse of state power – a scenario where the public will stand to lose.

Besides the apprehension surrounding potential rights violation, one may, and ought to, also be concerned with what this type of reactionary security approach will do to the surge of militant violence. By overly exerting pressure and control over acts and ideas deemed as potential sources of religious extremism, the new law may end up inciting a deeper feeling of being politically marginalised and further facilitating the emergence of religious extremism and terrorism.

Unfortunately, with the election coming up next year and national security being a major policy issue, it is unlikely that there will be reversals in the new provisions soon. It will be up to the public to step up and diligently hold the government accountable for any potential abuse of power.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) limits the death penalty, in those countries that have yet to abolish it, to ‘the most serious crimes’. The Safeguards adopted by the UN in 1984 made clear that ‘most serious crimes’ in this context meant not going ‘beyond intentional crimes with lethal or other extremely grave consequences’.

Since then, human rights bodies have campaigned to limit crimes categorised as ‘most serious’. In 2007, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions included ‘drug-related offences’ in his list of crimes that human rights bodies agreed were not the ‘most serious’. Most countries in Asia, the Middle East and North Africa have not taken note. While in 1979 only 10 countries imposed the death penalty for drug trafficking, by the end of 2013 that number had risen to 33 (in nine of which death is the mandatory penalty for drug trafficking). This alarming rise is, of course, not unrelated to the international rhetoric around the ‘war on drugs’, with Western governments supporting retentionist countries’ efforts to tackle drug trafficking, even if the end result might be capital punishment.

While retention of the death penalty for drug offences is certainly not in the spirit of the ICCPR, most Asian governments are adamant that drug crimes are among the most serious offences and that capital punishment is needed as a deterrent to reduce the rate of deaths following illegal drug use. This is despite a lack of evidence that the death penalty is associated with a marginally lower rate of the death penalty-eligible crimes than the next most severe penalty, life imprisonment.

So, how can human rights scholars and activists persuade the President of Indonesia, Joko Widodo (known as Jokowi), to halt the further executions planned, including that of the British woman, Lindsay Sandiford, and Filipina, Mary Veloso, who was given an 11th hour reprieve pending an appeal after fresh evidence about her role in the offence was forthcoming?

Appeals to human rights have not yet worked. The strong campaigning of Australian prime minister Tony Abbott and personal humanitarian appeals from Brazilian President Dilma Rousseff were, ultimately, unsuccessful. Australia has responded to news of the executions by recalling its ambassador from Indonesia, but resisted a boycott against trade or tourism, as #boycottIndonesia trended on twitter. Both countries have significant commercial ties with Indonesia that are put at risk by precipitous actions. The Brazilian government, after this second execution of a Brazilian in Indonesia in three months, is now evaluating its ties with Indonesia, but it too could suffer financially from severing all links. When finance and human rights clash, the latter is rarely the winner.

One possible recourse is to be found in the right to clemency. The leaders of Australia and Brazil had made personal appeals for clemency for their citizens among the group, but Jokowi, who has stepped up the pace of executions since coming to office, publicly stated that he will reject clemency for all prisoners sentenced to death for drug offences. As clemency should always be considered on a case-by-case basis for each and every prisoner, Jokowi’s statement is in clear breach of Indonesia’s binding obligations under Article 6(2) of the ICCPR.

Meanwhile, as the abolitionist world vents on social media, the prestigious TIME magazine has recently included Joko Widodo in its ‘100 Most Influential People’ list. Leading intellectual Paul Wolfowitz describes him as bringing ‘youthful energy and a popular touch’ to Indonesian public life, claiming that ‘the world needs the example of a successful Muslim-majority democracy’. Indeed it does, but this is not how a successful democracy should behave and Jokowi is not a man to be applauded while the relatives of those executed last night are still grieving.