Indonesia's Information and Electronic Transactions Law (the ITE Law) has all too frequently led to victims being charged, rather than perpetrators. The latest is Baiq Nuril Maknun (sometimes also known as "Makmun"). Unlike most other victims, it now appears Baiq Nuril's encounter with the law will have a positive outcome – albeit after a long period of suffering and unemployment.
Nuril's problems began in 2013, when she was working in a Lombok school. The school's principal, Haji Muslim, was reportedly having an affair with a married colleague, and related salacious, graphic details of their sexual acts to an unwilling Nuril, who told him that she did not wish to hear about them. Unfortunately, a colleague began to suspect that Nuril herself was having an affair with the headmaster.
In August 2014, as proof of the headmaster's sexual harassment and to assist in her denial of an affair with Haji Muslim, Nuril then taped one of the conversations, and played this to her husband and the colleague. The audio was eventually distributed widely among the school community, although Nuril denies that she did this herself. Some claim it was the colleague who had originally suspected her of having an affair. In any case, Nuril's contract was not renewed and no one has yet been charged with disseminating the recording.
Towards the end of 2014, Haji Muslim (by now promoted to a higher position in the Ministry of Higher Education and Culture) filed a police report against Nuril, alleging that she had distributed audio "which violated morality", in breach of Article 27(1) of Law No 11 of 2008 on Information and Electronic Transactions.
Crucially, under the ITE law, charges should only be brought against a person who knowingly and without authority distributes or transmits information or documents with contents that "violate morality", or contain content related to gambling, defamation or extortion.
Imprisonment and court
Nuril was questioned by police, spending 15 days in police custody and then 15 days in prison in Mataram before she faced trial in the Mataram District Court on 26 July 2017, where she was acquitted. Prosecutors appealed to the Supreme Court, which reversed the decision, imposing a six-month prison sentence and Rp 500 million fine.
Justice Sri Murwahyuni, the chair of the panel of judges hearing the appeal, said that the court found Nuril guilty of distributing, transmitting or allowing access to electronic information that "violated morality". She said that the judges had taken into account the shame that Nuril had caused Haji Muslim and his family, and that the event had resulted in the end of Haji Muslim's career as a school principal (he was moved to a different job in the Education Ministry bureaucracy). What the judges did not take into account was that the "immoral content" was Haji Muslim's own words, which Nuril had only recorded in an attempt to end the sexual harassment she had been experiencing.
The Supreme Court's strange decision received widespread condemnation from the public, with demonstrations against the verdict and a crowdfunding campaign launched to help Nuril pay her fine. In response, on 19 November 2018, the Attorney General's Office said it temporarily stayed Nuril's imprisonment. Nuril requested a final review (known as a peninjauan kembali) of the case by the Supreme Court, which it denied on 4 July 2019, leaving her with few other legal options.
President Joko "Jokowi" Widodo had earlier indicated that he would consider any request by Nuril for clemency but only if Nuril exhausted all appeal options. Nuril indicated she would not be requesting a pardon, as she did not consider she had committed a crime, but that she would be seeking amnesty.
As Daniel Pascoe explains, granting amnesty – often given to a group of people rather than an individual – does "not require any implicit admissions of guilt". Amnesty returns a convicted person "to a position as if they had not been convicted in the first place by 'forgetting' rather than 'forgiving'". It does, however, require the president to "heed the advice of the DPR" (the national legislature). Jokowi has now approved the amnesty, and Nuril is just waiting on the approval of the DPR, which is likely to be forthcoming.
Comparison with other cases
Nuril's case is quite distinct from many others under the ITE Law.
The first category of people charged under the Law are those engaged in "revenge porn", that is, circulating compromising videos, usually of women, who have either broken off a relationship or rejected the advances of a potential partner (see Decisions 182/Pid.B/2018/PN Sleman and 01/Pid.B/2015/PN.Mks Makassar). In these cases, the pornographic images are typically circulated by a scorned lover to publicly humiliate the victim.
The Law has also been used against a person who ran a pornography business, distributing pornographic videos to subscribers (Decision 217/Pid.Sus/2018/PN Jkt.Tim). In this case, the distribution may have been with the permission of the people filmed. Both these types of cases are uncontroversial, as they are clearly against the Law.
The cases of both Nazril Irham ("Ariel Peterpan") and Islamic Defenders Front (FPI) leader Rizieq Shihab are in a much more grey area of the law. In Ariel's case, homemade videos of his sexual activity (produced for his personal consumption) went viral on the internet. In Rizieq's case, it was screenshots of a flirtatious encounter on WhatsApp that appeared on the internet.
In both cases, the electronic material was uploaded by an unknown third party, who received no punishment. Nor was there a serious investigation to find the culprit in either case. Neither of the two men were accused of circulating the material themselves. In other words, the charges appeared to based more on perceived "immoral conduct" than on actual violations of the Law. The case of Nazril Irham resulted in a prison sentence, whereas charges against Rizieq Shihab have now been dropped.
The charges against Nuril were not based on her having distributed the recording of the headmaster's words by electronic means. Nor is she even perceived to have engaged in "immoral conduct". The basis for the charges are simply that she made a recording of the harassment that she was experiencing and that this was distributed by a third party.
Yet, without a recording, Nuril would have had no proof of the harassment, relying solely on her word against that of her principal, who was clearly in a more powerful position than her. As it stands, even if the charges against her are dropped, Nuril is without a job, while Haji Muslim remains employed.
It is not just Nuril who loses from this case. In addition to the stigma that many victims of sexual harassment in Indonesia already face, the decision of the Supreme Court is likely to dissuade other women from seeking redress.
It is little wonder that the #MeToo movement is taking a while to take off in Indonesia.