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Luhut reporting activists for defamation is another blow to freedom of expression

Indonesia at Melbourne - October 8, 2021

Yogi Bratajaya and Yassar Aulia – Late last month, Chief Investment Minister Luhut Binsar Pandjaitan launched legal action against human rights activists Haris Azhar and Fatia Maulidiyanti, alleging that comments they made in an online video amounted to defamation.

The video discussed the results of a report alleging military operations in the Papuan provinces were intended mainly to protect mining businesses, rather than improve security.

Drawing on spatial analysis, the report stated that four companies, Freeport Indonesia, Madinah Qurrata 'Ain, Nusapati Satria, and Kotabara Mitratama, benefited from the presence of military and police posts near their mining concessions in Intan Jaya district, Papua. This excessive security presence had resulted in the escalation of armed conflict in the region, the report said.

The report alleged that Luhut was implicated through his "affiliation" with Madinah Qurrata 'Ain. It also noted that Luhut is a minority shareholder in Toba Sejahtera Group, a company that also operates mining projects in Intan Jaya.

The case is the latest in a worrying trend where public officials have weaponised defamation provisions in the Information and Electronic Transactions Law ("the ITE Law") to silence critics or simply threaten those they think are "harming their reputation".

In the face of growing domestic and international criticism that the ITE Law is a major threat to freedom of expression, the government finally agreed to revise certain articles of the law. Earlier, in June, the Minister of Communication and Information Technology, the Attorney General and Chief of Police issued guidelines on implementation of the ITE Law, aimed at improving its clarity and reducing the number people charged under it.

Notably, the guidelines stressed that criminal charges should not be applied in circumstances where comments or statements were based on fact. It also stated that to be defamatory, comments should have the intent to harm an individual's honour.

The guidelines came too late to prevent a frivolous defamation claim against Saiful Mahdi, a lecturer from Syiah Kuala University imprisoned after criticising his university's recruitment process in a private WhatsApp group.

It is particularly shocking that Luhut would launch this move now, just as Saiful's case has attracted national and global attention for the harmful effects of the ITE Law on freedom of expression, forcing the president to grant Saiful a full pardon.

Many articles and academic works have examined problems with the controversial ITE Law from a domestic perspective. It is less often noted that it also conflicts with Indonesia's obligations under international human rights law.

Freedom of expression in international human rights law

Indonesia ratified the International Covenant on Civil and Political Rights (ICCPR) through Law No. 12 of 2005. As a party to the covenant, Indonesia is bound to respect the right to freedom of expression, which is guaranteed by Article 19. Article 19(3)(a) of the ICCPR explicitly states that freedom of expression may be subject to restrictions for the rights and reputations of others, but only if such restrictions are provided by law and are necessary.

When implementing the ICCPR, state parties have ascribed great weight to the interpretations produced by the UN Human Rights Committee (HRC), which is the independent body established specifically to supervise the application of the ICCPR. Although the HRC's general comments and jurisprudence do not legally bind Indonesia, human rights regulation and enforcement in Indonesia should remain consistent with the HRC's interpretation of state parties' obligations under the ICCPR.

In practice, Indonesia has shown a willingness to comply with the HRC's General Comments. For example, in its 2021 response to the List of Issues Prior to Reporting – a report submitted by the Indonesian government as part of its regular assessment by the HRC – the government referenced General Comment No. 37 to justify its compliance with Article 21 of the ICCPR guaranteeing the right to peaceful assembly.

To ensure defamation laws comply with Article 19 and do not stifle freedom of expression, HRC General Comment No. 34 states that criminal defamation laws should include defences such as the defence of truth (the ITE Law does not include this defence, although the government's ITE enforcement guidelines do recognise it).

The HRC's interpretation of Article 19 also states that comments about public figures should not be deemed unlawful unless the existence of malice can be proven. This echoes the US Supreme Court's interpretation of the First Amendment, which established the legal standard of actual malice – a statement made "with knowledge that it was false or with reckless disregard of whether it was false or not."

An influential example demonstrating how the HRC has dealt with freedom of expression is the case of Marques de Morais v Angola. In this case, journalist Marques de Morais was sentenced under Angola's defamation laws for publishing articles criticising the Angolan president. The HRC held that the imprisonment of de Morais breached Article 19 of the ICCPR.

In its decision, the HRC said it is of paramount importance, in a democratic society, to ensure the right of individuals to criticise or openly and publicly evaluate their government without fear of interference or punishment. The HRC also added that the president was a public figure and therefore subject to criticism and opposition.

This case bears remarkable similarity to Luhut's defamation complaint. Both concern efforts to stifle criticism of public officials using the nation's defamation laws. As noted, Indonesia is not bound by decisions of the HRC. But if Indonesian courts sentenced the two human rights activists to prison for violating defamation laws, that would breach Indonesia's obligations under Article 19 of the ICCPR.

The ICCPR does not impose sanctions for violating its provisions and Haris and Fatia do not have the option of submitting a formal complaint to the HRC, because Indonesia is not a party to the First Optional Protocol of the ICCPR (which establishes this complaint mechanism). But there is no doubt that Indonesia's already flawed human rights record would be further tarnished.

The fading promise of reformasi

Whether applying the legal standards for defamation in international human rights law or even the guidelines for implementation of the ITE Law issued by Luhut's own government, it is clear that the two human rights activists should not be criminalised for their comments.

The video contains research in the public interest, that was based on fact, and was not made with malice. In the event that police and prosecutors ignore the recently issued ITE Law guidelines and the two human rights activists are charged and imprisoned, it would add to the chilling effect that the ITE Law is already having on the freedom of expression in Indonesia.

If Indonesia is still committed to fulfilling the promises made by reformasi two decades ago, the right to freedom of expression must be respected. Public officials should realise that in a democratic society, criticism comes with the job. They should respect the public's right to air their grievances, rather than taking legal action simply to protect their reputation.

Threatening legal action against critics will only further shrink civic space. As the government and legislature move ahead with amending the ITE Law, they must remember Indonesia's obligations under international human rights law.

After more than 30 years struggling through the darkness of Soeharto's authoritarian regime, reformasi offered a light at the end of the tunnel, hope that a liberal democratic system could be established in Indonesia. But looking at how freedom of expression has suffered under the government of President Joko Widodo, that light seems to be beginning to fade.

Source: https://indonesiaatmelbourne.unimelb.edu.au/luhut-reporting-activists-for-defamation-is-another-blow-to-freedom-of-expression