Maidina Rahmawati and Erasmus AT Napitupulu – Over the past few weeks, police and local governments have painted over at least three murals voicing public criticism about the government's management of the Covid-19 pandemic.
The most controversial of these was an image of President Joko "Jokowi" Widodo's face, his eyes covered with the common internet error message "404: Not Found", in Tangerang, Banten. Authorities also took issue with a mural in Pasuruan, East Java, that read "Forced to be Healthy in a Sick State" (Dipaksa Sehat di Negara yang Sakit), and another reading simply, "God, I'm Hungry" (Tuhan Aku Lapar), also in Tangerang.
Police have pursued the artists, turning up at the home of one of the creators of the "Tuhan Aku Lapar" mural, and examining two witnesses in relation to the "404: Not Found" mural. A man from Tuban, East Java, was also taken in by police and forced to issue a public apology after he advertised a t-shirt with the "404: Not Found" image on social media.
For many, the harsh crackdown on public criticism has echoes of Soeharto's authoritarian New Order period, and goes against the democratic and human rights protections guaranteed in Indonesian law since 1998. Protections for freedom of expression are quite comprehensive, and are found in Article 28E(3) of the amended 1945 Constitution, Article 23(2) of the Human Rights Law (No. 39 of 1999) and also Article 19 of the International Covenant on Civil and Political Rights, which Indonesia ratified with Law No. 12 of 2005.
Authorities have tried to shift the debate from human rights to law enforcement and criminality, as if violation of local bylaws on "public order" justifies the removal of the murals and the repressive actions of the police. Obviously, twisting the mural cases into violations of local bylaws is a convenient excuse to justify unlawful police actions after the fact, especially when the murals seem to have only become a problem after they went viral on social media.
Moreover, it was the police who removed the murals and called in the artists for questioning. If the case was really related to maintaining public order, then the responsible state authority should be Satpol PP – public order officials under the auspices of the local government – not the police.
In any case, police said the mural creators could be charged with defaming the president as a symbol of the state, defaming public bodies/authorities under Article 207 of the Criminal Code, or "hate speech" against the president under Article 28(2) of the Electronic Information and Transactions Law (the so-called ITE Law).
This is a problem because first, provisions in the Criminal Code on defamation of the president (Articles 134, 136 bis, and 137(1)) were revoked by the Constitutional Court in 2006. At the time, the Court emphasised that the criminalisation of defamation of the president was no longer relevant for a democratic society, in a state that upholds human rights.
Claiming that the president is a "symbol of the state" is also incorrect. Law No. 24 of 2009 on the State Flag, State Language, State Symbols and National Anthem only lists the Garuda Pancasila and accompanying national motto of "Bhinneka Tunggal Ika" (Unity in Diversity) as state symbols. But more importantly, the Constitutional Court also stated in its 2006 decision that the president as head of state should not receive preferential treatment under the law. It said that special treatment for the president should be limited only to matters of presidential protocol, and not criticism.
Second, police also mentioned the use of Article 207 of the Criminal Code on defamation of authorities or public bodies. But when reviewing this article in 2006, the Constitutional Court stated that charges should only be brought following a specific complaint from the aggrieved party. This effectively amended the article so that it only protects individuals and not the "dignity" of state institutions. It also means that unless the insulted individual makes a formal complaint to police, they cannot charge any of the mural creators under this article.
Third, Article 28(2) of the ITE Law makes it an offence to intentionally spread information intended to give rise to feelings of hate or hostility toward an individual or group based on their race, ethnicity, religion, or social group. It should therefore not be applied to criticism of public figures unless this criticism is part of efforts to incite discrimination, hatred, or violence based on these kinds of characteristics – not that this is how police have interpreted this article in the past. Rather than using the article to protect vulnerable minority groups, police now seem more concerned with protecting public officials from any kind of criticism. A recent Joint Ministerial Decision providing guidelines for application of the ITE Law by the police appears unlikely to resolve the many problems with it.
On 20 August, police announced that they would no longer pursue the creators of the "404: Not Found" mural, describing it as a "work of art" (karya seni). But this came far too late. The threat of criminal charges had already been made and the desired "chilling effect" already achieved. Citizens will no doubt be much more hesitant about similar public expressions of criticism in the future.
Murals have a long history as a tool to voice criticism in Indonesia, appearing as far back as the revolutionary period of 1945-1949. After the collapse of the New Order and the new guarantees of freedom of expression that came with it, murals have become a common artform to voice public views, and have been accepted as legitimate and lawful expressions.
It is understandable that murals will need to be removed or modified for reasons of public order from time to time. But the three murals that have recently sparked controversy are legitimate expressions of criticism of a government that has a lot to answer for in its management of the Covid-19 pandemic. Acts of repression against the legitimate exercise of rights are never justified.
The repressive actions of the police are just another indication of the rapidly declining health of Indonesian democracy. Earlier this year, Indonesia dropped to 64th position in the Economist Intelligence Unit's (EIU) Democracy Index – its lowest position for 14 years. Indonesians are starting to take notice too. In 2020, a survey by Indikator found 36% of respondents felt Indonesia was becoming less democratic, 22% felt discouraged to express their opinions, and 58% said police were harsher toward people with views different to those of the government.
These conditions are only likely to get worse. Our organisation, the Institute for Criminal Justice Reform, has identified several articles in the draft revised Criminal Code (RKUHP) that the government recently submitted to the national legislature (DPR) that further constrain democracy. The government draft even attempts to reinsert problematic articles previously revoked by the Constitutional Court for being inconsistent with Indonesia's democratic constitution – such as Articles 218-220 on defamation of the president and Articles 240-241 on defamation of the government.
Limits on police power are a key element of democratic rule of law states. But under the current Criminal Procedure Code (KUHAP), which has existed more or less in its current form since 1981, police have wide authority to arrest and detain individuals based on their own considerations. The only means an individual has to challenge arrest or detention is through a pretrial hearing (praperadilan).
But a pretrial hearing challenge can be launched only after arrest or detention and is only available to "suspects". What about those individuals whose status is "unclear" (because they have never been formally declared a suspect)? Or those who can't afford a lawyer to launch a pretrial challenge? Resolving these issues requires revising the KUHAP, and, given the pace of discussions in the DPR, it will be some time yet before this occurs.
The president and other officials frequently make statements in support of freedom of expression and opinion. But these platitudes are not consistent with the facts on the ground. The clearest example of this is that the president and the DPR have taken no concrete steps to correct the repressive actions of police.
If the government and DPR are truly committed to maintaining Indonesian democracy, as they say they are, then they must immediately revoke the repressive articles in the RKUHP and ITE Law. Further, they must make efforts to initiate meaningful discussion on criminal procedural law reform to limit the powers of the police, and provide effective oversight in procedural law.
Murals will continue to be produced and criticism will continue to flow. The only question is how the government deals with this criticism. Will it continue to respond with repression, or will it uphold the democratic principles that it likes to say that it remains committed to? The draft revised Criminal Code and the actions of the government so far certainly raise major doubts about the sincerity of this commitment.