Usman Hamid – More and more people are falling victim to Indonesia's Information Law, which is notorious for being used to criminalise political dissidents.
Human rights lawyer Veronica Koman and journalist Dandhy Dwi Laksono were charged in September – in separate cases – for allegedly "inciting hatred" on social media related to recent unrest in Papua in which dozens were killed and hundreds injured.
During protests against several controversial pieces of legislation before the Indonesian parliament in the same month, journalist and musician Ananda Badudu was charged with spreading "false news" for saying that students were mistreated by the police.
More recently, Corruption Eradication Commission (KPK) investigator Novel Baswedan was reported to the police and accused of faking an eye injury following an acid attack two years ago. At the time, Novel was investigating several major graft cases involving government officials.
The list goes on and on.
The Information Law (formally the Information and Electronic Transaction Law) was enacted during President Susilo Bambang Yudhoyono's tenure in 2008 – a decade after the fall of the authoritarian New Order regime.
However, many consider the law sabotages the hard-earned freedom of expression ushered in by the 1998 reforms.
The law was passed to protect consumers in electronic transactions when the use of the internet in economic activities gained traction.
But, in practice, the government and law enforcement officials have abused the law to silence political dissidents, aggravating the declining protection of free speech in the country.
Freedom House, an independent democracy watchdog, downgraded Indonesia's status from "free" to "partially free" towards the end of the Yudhoyono administration in 2014. The country's rank fell from 41st in 2013 to 42nd in the following year.
The situation worsened under President Joko "Jokowi" Widodo, a figure who was once seen as "Indonesia's Obama" and was expected to improve the country's freedom of expression as he had no military or political background.
Under Jokowi, Indonesia's score on civil liberties dropped from 34 in 2018 to 32 this year. The country's freedom of expression index also dropped from 12 in 2015 to 11 in 2019.
The pattern of abuse
The increasing number of cases involving the abuse of the Information Law has contributed to the decline of freedom indices from Yudhoyono's to Jokowi's time.
According to data from the South East Asian Freedom of Expression Network (SAFEnet) and Amnesty International, the number of incidents involving the Information Law surged from 74 cases in the Yudhoyono era (2009-2014) to 233 cases during Jokowi's tenure (2014-2019) – a more than threefold increase.
There are several factors to explain this. The law's broad coverage and definition of certain kinds of speech – which is prone to loose interpretation – is one of them.
For example, the term "electronic information" in the bill is not well defined. Does this include information conveyed through emails and text messages? This would be an invasion on citizen privacy.
The Information Law also does not clearly differentiate between insults and defamation as defined in the country's Criminal Code.
Before the law took effect, cases of libel and slander were prosecuted using Article 310-321 – an entire section of the criminal code that regulates defamation.
The vague definitions within the Information Law make it prone to misuse by law enforcement officials during criminal investigation or judicial proceedings.
Political insults toward the president
The increasingly prominent role of the police and their abuse of authority in defending governmental institutions – including the president – also contributed to the decline in freedom of speech.
Based on unpublished data from Amnesty International, 241 individuals were criminalised for criticising authority figures of the Jokowi administration during the first term of his presidency (2014-2019).
Some 82 out of 241 of the cases involved people who were considered to have uttered "hate speech" and "insults" towards the president.
A majority (65) of the 82 cases involved insults against Jokowi through social media. The others were made through offline mediums such as speeches and political protests. Most of the social media cases were brought to light through the police's monitoring of cyber activities.
One clear case was that of Sri Rahayu, who was sentenced to one year in prison and fined over US$1,400 in August 2017 for spreading "false news" and "insults" directed at Jokowi on a Facebook post.
Rahayu's case is just the tip of the iceberg.
The current plan to revise the criminal code to re-include provisions of insults towards the president will give authorities even more tools to silence peaceful and valid criticism. This poses a threat to whatever free speech rights Indonesians have left.
Data from SAFEnet in 2018 shows that of 245 cases involving the Information Law since 2008, more than a third (35.92%) were started by reports by government officials. Their targets were activists, journalists, civil servants and even teachers.
Generally, the silencing of these critics occur in the regions where the local media have limited coverage and are often biased to local rulers. The media often do not expose these cases and leave them at the mercy of law enforcement.
This has essentially caused governmental repression of criticism and dissent to become somewhat "decentralised". It is no longer a national collaboration, but instead becomes the discretion of local rulers in defending their interests.
Cases in South Sulawesi provide good examples. Junior high school teacher Budiman in Pangkep regency was arrested for insulting the regent in 2013. Similar arrests happened to anti-corruption activist Muhammad Arsyad in Makassar in 2014, civil servant Fadli Rahim in Gowa in 2015, and others for criticism of local leaders posted in social media.
The legal harassment of the three individuals above was followed by physical intimidation from government supporters.
The Information Law has been brought to the Constitutional Court (MK) for judicial review a total of seven times. All appeals related to freedom of expression were rejected. Only once was an appeal granted in 2010 regarding an article on wiretapping.
The court has always rejected challenges to the law, saying it was still an important regulation. The court has said that "without the articles in this law, people are free to insult each other".
Authorities have a political interest in maintaining the law as it gives them the power to silence dissent and criticism.
Instead, they should erase all articles in the Information Law that are liable to be misused to restrict free speech.
At the very least, steps should be taken to keep pushing for the government to use non-criminal charges, so individuals can be fined instead of jailed.
[Usman Hamid is a lecturer with the Indonesia Jentera School of Law and Amnesty International Indonesia Executive Director.]