Harison Citrawan, Jakarta – A recent IndoBarometer survey found that 29.7 percent of 1,200 respondents were satisfied with the Yudhoyono administration and 40 percent thought the New Order was better than the reform administrations. This, in my opinion, marks a hypothesis that the people are missing a stable and secure social condition.

It appears that the freedoms that we have been enjoying for the last 13 years seem to be unfettered, particularly the freedom of expression. Meanwhile, it is also undeniable that in some cases the state has perplexed in enforcing legitimate limitations and restrictions on such freedoms.

In relation to this issue, London-based human rights NGO Amnesty International (AI) recently published its Annual Report 2001: The State of the World's Human Rights, which provides an overview of the state of human rights around the world.

In the sub-section on Indonesia, AI highlights some setbacks related to the freedom of expression.

The report mentions at least four cases of suppression of freedom of expression, including in the arrest of several activists, and an incident in which some journalist were killed. These facts convey that there is something wrong with our way of dealing with the restriction of expression.

One element in the international legal basis to the freedom of expression can be found in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states that "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his [or her] choice".

In relation to this, in April this year the Human Rights Committee of the ICCPR issued the Draft of General Comments no. 34 on Article 19 on the freedom of opinion and expression. This draft should in fact expand our horizons in interpreting such freedom.

In the draft, the committee mentions that freedom of expression shall include political discourse, commentary on one's own and on public affairs, canvassing the discussion of human rights, journalism, cultural and artistic expression, teaching and religious discourse. One should bear in mind that although the right to hold opinions is indeed broad, it is not limitless.

The few legitimate restrictions that can be imposed by the state on this right are: (i) for the respect of the rights or reputations of others, and (ii) for the protection of national security or public order, or of public health or morals (Article 19 (3) of the ICCPR). Here we arrive at the most debatable point.

Around the region many repressive actions by police or military forces upon individuals, who are exercising their freedom of expression, have been largely based on the aforementioned legitimate restrictions.

However, it is worth noting that the committee in the Draft takes a broad point of view by stating that "it is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest".

In addition to this, the committee in the Mukong v. Cameroon case clarifies that there can be no legitimate restriction under Article 19 (3), which would justify the arbitrary arrest, continued detention and treatment in violation of the right to life. (Comm. No. 458/1991, 21 July 1994).

Up to this point, in order to balance law and human rights, it should be quite clear that the application of the law on treason and subversion in Indonesia ought to follow such an understanding. As a result, any arrest of activists on the basis of national security or threat to public order because of their activities of public interest must be deemed illegitimate.

A question may subsequently arise as to how the state shall determine a proportionate restriction upon one's expression. In answering this question, for the importance of supportive legal arguments, I would like to cite some case-laws proceeded at the Human Rights Committee.

In the Faurisson v. France case, E. Evatt and D. Kretzmer of the Human Rights Committee conveyed a rather insightful separate opinion by stating that "the Covenant [ICCPR] therefore stipulates that the purpose of protecting one of those values is not, of itself, sufficient reason to restrict expression.

The restriction must be necessary to protect the given value. [...] The scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value. [...] the restriction must not put the very right itself in jeopardy".

Furthermore, another nature of legitimate restriction departs from the case-law of Shin v. Republic of Korea.

In its consideration, the committee concluded that a legitimate limitation must demonstrate, in specific and individualized fashion, "the precise nature of the threat and the necessity of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat".

Consequently, such a degree of proximity between the expression and the threat is not within the ambit of the executive's margin of appreciation to determine. In my view, such proximity has to be assessed by an independent national or international body, because otherwise the government will be the jury of its own cases.

All in all, it is internationally a common consideration that the application of the principle of proportionality has to be respected not merely in the law that prescribes the restrictions, but also by the administrative and judicial authorities of the state applying the law.

The state is facing the tough duty of maintaining "legitimate fetters" of freedom of expression, particularly the need to reformulate the law of treason and subversion. While this is no easy task, promoting freedom and enforcing the law is an essential means to establishing a more secure and stable society.

[The writer is an employee at the Human Rights Research and Development Agency under the Law and Human Rights Ministry.]