John McBeth – Jakarta's Administrative Court, reputedly the most progressive branch of Indonesia's much-maligned judicial system, may have broken new legal ground by ruling that the government acted illegally in shutting down the internet during anti-racism riots in Papua last year.
Legal reform advocate Dian Rosita says while the court stopped short of declaring the practice of internet blackouts unlawful, it was the first time human rights principles had been applied to an existing law, something she hopes will set a standard for other jurists to follow.
Live-streamed on June 3, the judgement said President Joko Widodo and then communications minister Rudiantara had violated the 1959 Emergency Law by imposing the internet blackout without proving during court hearings that a state of emergency was justified.
Although the law was passed long before the internet was conceived, it gives the government the power to take any actions it deems necessary to deal with an emergency situation affecting the country's security.
Responding to a lawsuit brought by a coalition of civil society groups, the three administrative court judges, all women, ruled that any policy which limited the people's right to information should be made in accordance with the law and not merely at the discretion of the government.
Among the plaintiffs was the Alliance of Independent Journalists (AJI), which claimed in its submission that the government had only succeeded in sewing confusion by robbing journalists of the ability to verify what was happening in Papua.
Although Widodo promised in 2015 to lift the long-time blanket ban on foreign reporters entering Papua, that has never happened, mainly because of the prohibitive procedures laid down by security agencies to gain a travel permit.
The court found "bandwidth throttling" was used in West Papua and Papua provinces on August 19, 2019, and that authorities either blocked content or cut off internet access entirely in 42 cities and regencies between August 21 and September 4.
The Information and Communications Ministry claimed to have blocked 713,166 internet links during the period of the riots which it claimed contained hoax messages about further racial incidentsin the East Java port city of Surabaya, where the trouble began.
Previously, in May, the Communications Ministry cut social media and instant messaging across Jakarta in an effort to head off the organization of violent protests against Widodo's re-election, following a heated presidential race.
While the tactic appeared to achieve its purpose, it raised questions about the future implications for freedom of speech and raised the broader issue of how other governments in the region have been using partial blackouts as an authoritarian tool.
Internet research firm TOP10VPN says 122 national or region-wide shutdowns cost the global economy more than US$8 billion last year, mostly in response to protests or civil unrest "as authoritarian regimes looked to restrict the flow of information and maintain their grip on power."
Coming in the middle of an explosion of racial unrest in the United States over the death of a black suspect at police hands, the Papua ruling has also forced some Indonesians to look inwards at their own record of racial discrimination towards ethnic Melanesians.
Last year's riots were triggered by an incident in Surabayain which a mob shouting "monkey" and other insults attacked Papuan students who had allegedly defiled an Indonesian flag in the aftermath of Indonesia's 74th independence day celebrations.
Spread on social media, the violence left more than 30 people dead and caused widespread damage to government buildings in Manokwari and Jayapura, the respective capitals of West Papua and Papua, and the district centers of Wamena, Sorong, Fak Fak and Timika.
Papuan students have long been the subject of discrimination on Java, but little has been done to address that and other derogatoryissues which go to the heart of the rebel Free Papua Movement's (OPM) struggle for independence.
Amnesty International Indonesia called the court decision a rare victory for Papuans. "Although the ruling is only a small step towards justice for human rights abuses in Papua, at least it is a step in the right direction," executive director Usman Hamid said in a statement.
Legal reform began under new Supreme Court chief justice Bagir Manan in 2001, two years after the fall of long-serving president Suharto. But it has been a painfully slow process with criminal justice trailing far behind advances made in adjudicating civil law, particularly litigation.
The Administrative Court has made the most progress because of the pioneering work of Sorbonne-trained Paulus Lotulung, the Supreme Court's former deputy chief justice for state administration who once admitted he was ashamed of the corruption in the court system.
Although the government is likely to appeal the Papua ruling, Rosita believes the court's judgement is so well argued, rare in Indonesia's judicial system, that state attorneys may only be going through the motions.
But the longer term impact of the decision remains in doubt, given subsequent statements by the communications ministry that the court's failure to specifically address internet blackouts meant it could still apply them when it feels they are warranted.
"If internet access had remained open, the government was worried that the spread of information would have brought further divisions," said current Communications Minister Johnny Plate, who made it clear he respected the court's decision.
Rosita, senior researcher with the Indonesian Institute for an Independent Judiciary (LeIP), hopes the ruling can be used to push Parliament into outlawing the use of internet blackouts as a weapon to put down civil unrest.
Some legal activists believe the practice could be prohibited as part of amendments to controversial provisions of the 2008 Electronic Information and Transactions Law (ITE) that they say already impinge on freedom of expression.
The government argued the blackout was in accordance with the ITE law, but the judges asserted that the legislation could only be enforced to block access to electronic information and illegal documentation, not the internet itself.
The judgement also said that fake news should only be tackled by using provisions in the Criminal Code or blocking specific accounts that spread false information.
Reformers don't put much faith in the Constitutional Court, which has taken a conservative turn since its formative years in the early 2000s when the caliber of the justices negated the political way the court was structured.
Indonesia follows the French judicial system in which court decisions can be used as a model, but not as a binding legal precedent to be followed in deciding subsequent cases with a similar set of issues or facts.
However, the Indonesian and Dutch supreme courts have been engaged in consultative discussions that could see a system of precedence adopted internally, without the judiciary going so far as to take on the role of lawmaker.
The Indonesian court does publish occasional circulars that provide guidelines on tackling specific cases, but now the 60-member bench has formed itself into different chambers, each charged with drawing up a set of norms aimed at eliminating often glaring inconsistencies in court decisions.