At 12:30am on Thursday morning, Jakarta State University (UNJ) academic (and regular Indonesia at Melbourne contributor) Dr Robertus Robet was picked up from his home in Sukmajaya, Depok, and taken to the Indonesian National Police Headquarters for questioning.
According to the police warrant, Robet was accused of "spreading hatred and hostility" and "offending an authority or legal body" in Indonesia. He faces charges under Articles 28(2) and 45(2) of Law No. 11 of 2008 on Information and Electronic Transactions (as amended by Law No. 19 of 2016) and/or Articles 14(2) and 15 of Law No. 1 of 1946 on Criminal Law, and/or Article 207 of the Criminal Code (KUHP).
About a week earlier, Robet had spoken at the weekly Kamisan (Thursdays) protest in front of the Presidential Palace. Kamisan was initiated by families of victims of enforced disappearance during the final days of the New Order, as a public means to demand the state take action, but has evolved into a general human rights protest.
On 28 February, the theme of the protest was the recent proposal to revise the 2004 Law on the Indonesian Military (TNI) to allow active officers to serve in ministries and state institutions. Many activists fear this proposal would mark a return to the dual function (dwi-fungsi) of the Armed Forces of the Republic of Indonesia (ABRI) under the New Order.
In his speech, Robet asked attendees to recall a spoof of an army song that was commonly sung by democracy activists (openly, without them suffering consequences) in 1998, at demonstrations that preceded the fall of Soeharto. A rough translation of the activists' version of the song is as follows:
Angkatan Bersenjata Republik Indonesia (The Armed Forces of the Republic of Indonesia, ABRI)Tidak berguna (Are useless)Bubarkan saja (Just disband them)Diganti Menwa (Replace them with the Student Regiment)Kalau perlu, diganti Pramuka (Or if necessary, with the scouts)
Naik bis kota nggak pernah bayar (They never pay when they ride the public buses,)Apalagi makan di warung Tegal (Let alone when they eat in Tegal food stalls)
In singing this song, Robet aimed to remind attendees of the danger of militarism in civilian life, a burning issue when the song was sung in the last days of the New Order. In a speech, he called on attendees to reject the proposal to place active military personnel in civilian roles, so that there was no return to dwi-fungsi.
But his speech was edited and the portion in which he sang the spoof ABRI song shared widely online. This short version then prompted harsh responses from individuals who felt Robet had insulted the TNI. Almost immediately, there were calls to arrest him and subject him to the legal process.
I believe those calling for Robet to be prosecuted can be divided into two groups: those who genuinely do not understand the broader context of the edited video, and those who have an interest in the TNI regaining a role in civilian affairs, and see this case as an opportunity to discourage any (further) public opposition to the plan.
There are several important principles that must be understood in relation to this case. The first relates to the legal process.
The arrest itself is not necessarily problematic – law enforcement officials across the world are provided with powers of arrest. In Indonesia, police investigators are provided with the authority to arrest suspects under Articles 16-19 of the Indonesian Code of Criminal Procedure (KUHAP).
But the problem lies in the criminal provisions used to justify Robet's arrest. The phase "spread hatred and hostility" (derived from Article 28(2) of the 2008 Information and Electronic Transactions Law, as amended in 2016) is vague and open to multiple interpretations. It is in fact a very similar formulation to the notorious colonial era "hate-sowing" articles (haatzaai artikelen) (Articles 154-155 of the Criminal Code), which were revoked by the Constitutional Court in 2007.
Investigators also used another provision that is problematic in this case. Article 207 of the Criminal Code refers to "offending an authority or legal body". This article is a "complaint offence" (delik aduan), meaning that the authority or legal body in question has to submit a formal complaint about the offence to police before they can take action. This requirement was not fulfilled in this case. The TNI Headquarters even said that it considered Robet's speech to be "valuable input" for the institution. Concerningly, on Thursday evening, it emerged that the police were responsible for making the report on which they claimed to act. So, if TNI was moderate in its response, why were the police so aggressive?
A further problem is that the power of Indonesian investigators to arrest and detain individuals is extremely broad and cannot be challenged in any meaningful way. In most countries that observe the rule of law, within 24 hours of arrest, investigators must be able to present to a court sufficient legal evidence to declare someone a suspect and provide a reason for detention. Indonesia has no legal requirement for this to occur, meaning arrest and detention can be highly vulnerable to political intervention, and can extend for weeks or months without the case being referred to prosecutors. This is why, as the Presidential Election approaches, Indonesia has seen increasing use of law as a political instrument.
Although there are no obvious indications of political motivations for Robet's arrest, he is a high profile democracy activist and has been a vocal campaigner for non-voting (golput) in the upcoming elections.
The second problem relates to the principle of error in objecto – an error in the identification of the object or victim of a criminal act. In Robet's speech, and in the song that has resulted in the problem, Robet refers to ABRI, not TNI. ABRI ceased to exist in 2000, when it was split into the TNI and Indonesian National Police (Polri), based on People's Consultative Assembly Decree No. VI and VII of 2000.
Is what was done by ABRI during the New Order the responsibility of TNI and Polri now? Of course not. TNI and ABRI are two different legal entities. Even at an organisational level, their organisational doctrines or beliefs and policies are vastly different. Does criticising the ABRI in the past mean that one is criticising the TNI today? No. The two are not the same.
Put another way, are we criticising President Joko "Jokowi" Widodo's administration when we criticise the New Order? The government of today also performs the functions of government, as did the New Order regime. Indeed, many of the faces in government and the bureaucracy today were around during the New Order. But no one would ever suggest that criticism of the New Order constituted an attack on the government of the day.
Given these numerous legal problems, it would be entirely appropriate for Polri to stop the legal process against Robet. The law has been applied incorrectly, and there is error in objecto.
What happens next?
Robet was released from custody at 2:30 yesterday afternoon. However, I believe his status as a suspect and the case will continue to hang over his head. In this way, the pressure on Polri (from both democracy activists and pro-military supporters) will dissipate, but Polri will still hold Robet's fate in its hands.
Given the public pressure from both sides, I suspect President Jokowi will not want to be seen to take direct action in relation to the case. Most likely he will say something along the lines of "the law must be respected, follow the legal process in accordance with existing regulations", and quietly request that Polri prioritise the safety and security of the upcoming elections on 17 April. This probably means Robet would not be prosecuted but would conveniently leave the case hanging over his head – and keep him silent – until after the elections.
This situation is very hard to predict with confidence. The TNI has already shown a degree of willingness to accept Robet's comments. If public criticism continues and if there are broader and more intense public demands for Polri to drop the case, the police may have little choice but to do so. However, either way, the chilling effect of Robet's arrest alone is, unfortunately, sure to close the space available to publicly oppose the military's return into civilian affairs.