In early January, Indonesian Journalists enjoyed a significant and unprecedented victory with the conviction of two police officers for assaulting a journalist in Surabaya.
On Wednesday, January 12, 2022, Chief Brigadier Purwanto and Brigadier Muhammad Firman Subkhi were sentenced to 10 months in prison and ordered to make restitution of Rp. 13,813,000 (approx. USD 965) to Nurhadi. The sentences were lower than the prosecutor's request for 18 months in prison for each.
This was a significant decision in a trial that had been closely and anxiously monitored by press freedom groups. So intense was the interest that the delivery of the verdict was attended by the Executive Director of the Legal Aid Institute for the Press (LBH Pers) Ade Wahyudin, members of the Indonesian Press Council, representatives of the Alliance of Independent Journalists (AJI), Amnesty International Indonesia, and other press freedom organisations.
While welcome, the sentences handed down to the two police officers were, nonetheless, criticised by press freedom groups as inadequate. They argued that the assault on Nurhadi and the wilful destruction of his personal property should have merited separate criminal prosecution, such crimes being in addition to the offences of obstruction of journalistic work, persecution,intimidation, and confinement of journalists who are carrying out press functions, functions which are supposed to enjoy additional protection under the Indonesian Press Law.
Notwithstanding these criticisms, press freedom groups regard the decision as setting an important precedent in support of the campaign to protect journalists who become victims of violence, especially when those acts are carried out by law enforcement officers. Based on data collected by LBH Pers and other human rights NGOs, in recent years perpetrators of violence against journalists have very often been law enforcement officers.
Police officers were the perpetrators in 12 attacks against journalists in the last year. Perpetrators were unknown in 10 cases, government officials in eight cases, residents in four cases, and professional workers in three cases. Corporations, the Indonesian National Armed Forces (TNI), prosecutors, and mass organisations were each responsible for one case.
Legal, academic and expert adviser to AJI, Herlambang Wiratraman, has welcomed the use of the legal framework under Article 18(1) of the Press Law, which has rarely been used in the law enforcement process for cases of violence against journalists. According to Herlambang, the Surabaya District Court is to be commended in utilising this legal framework.
AJI Indonesia stated that from 2020 to 2021, there were 90 cases of violence against journalists, an increase from the previous period’s 57 cases.
The two officers were found guilty of committing a criminal act of obstruction of journalistic activity under Article 18(1) of the Press Law. LBH Pers states that this decision highlights that investigative journalism, not just news reporting, is protected by Indonesian law. Although not technically creating a binding precedent, the judge's decision will contribute to developing jurisprudence in similar cases.
The prosecutor of Nurhadi's case has appealed the verdict sentencing the two police. The convicted police have also appealed the verdict.
The use of Article 18(1) of the Press Law, in this case, is also an important reminder that the penalties under the Press Law can be applied to cases related to the obstruction of journalistic activities.
LBH Pers has expressed a number of criticisms of the judge’s approach.
First, although the panel of judges identified several criminal acts under the criminal code, such as intimidation, assault, and being forced to delete the report, the judge restricted the convictions to breaches of the press law and sentenced them using the Press Law only.
LBH Pers also pointed out that both the Public Prosecutor and the judge ignored factors that should have aggravated the penalties against the two officers who occupied a special position as law enforcement officers, whose prime function is to protect and serve the community.
Finally, the judge did not order the detention of the defendants and Nurhadi was under the protection of the Witness and Victim Protection Agency (Lembaga Perlindungan Saksi dan Korban ‘LPSK’) while the trial progressed. Since the case commenced, LPSK provided special protection for Nurhadi by placing him in an LPSK safe house. During those 10 months in the safe house, Nurhadi's activities were, necessarily, very limited. This, arguably, placed him under additional psychological stress because the officers remained at large.
While LBH Pers regarded the decision as setting an important practical precedent for the protection of journalists, it emphasised that whereas interference with journalistic activities is prohibited, violence against journalists is a separate issue. LBH Pers stated that the Judges in Nurhadi’s case failed to take advantage of the momentum presented by the case to protect press freedom to punish the defendants to the fullest extent of the law. LBH Pers urged the Public Prosecutor to immediately appeal against this decision to request harsher penalties.
While the Nurhadi verdict is to be welcomed, it stands in marked contrast to the otherwise steady decline in press freedom and democratic norms generally in Indonesia. In December 2021, the Committee for the Safety of Journalists (KKJ) published an important review of the recent state of press freedom in Indonesia.
The KKJ consists of ten press organisations, press associations and civil society organisations, most notably the Indonesian Press Legal Aid Institute (LBH Pers), Amnesty International Indonesia, and IFJ affiliate the Alliance of Independent Journalists (AJI). The KKJ was formed in April 2019 following concerns about increasing violence against Journalists in Indonesia, the deteriorating climate for press freedom in Indonesia and to act as a coalition to advocate for Press Freedom.
Prosecutions have recently been launched under the now-notorious Law no. 11 of 2008, the Information and Electronic Transactions (ITE) law. AJI, and numerous other press freedom organisations, had campaigned against this law since its introduction, but the government was adamant that the law was a pragmatic response to the regulation of ‘e-commerce’, a suggestion ridiculed at the time by journalist groups and their legal advisers.
Early fears were soon vindicated by the prosecution of a suburban mother who had the temerity to make a complaint in an email discussion with her friends about her treatment at a private hospital near Jakarta. This was a prosecution that became an international embarrassment and a portent of the predicted threat to press freedom.
The Press Council has constantly repeated its strong view that Press complaints/disputes should be dealt with under the Press Law and not as criminal offences, especially under the ITE law.
The KKJ’s December 2021 report highlighted three important recent cases which raise issues about the existence, and utilisation of, the ITE law.
The first concerns Moh Saldi Saleh, a senior journalist of Buton, South East Sulawesi, who was prosecuted under the ITE law for an article he wrote which criticised the planning policies of the Regent of Central Buton. Saldi was convicted by the Pasarwajo District Court and sentenced to two years in prison for violating Article 45(2) and (3) of the ITE Law. After serving eighteen months, he was finally released on March 17, 2021. This case is a textbook example of the law being used as a weapon against investigative journalism, redolent of the celebrated 2004 case against Tempo magazine chief editor Bambang Harymurti.
The second case concerns Diananta Putra Sumedi, Chief Editor of Banjarhits/Kumparan.com, who was found guilty by the Kotabaru District Court, South Kalimantan, of violating Article 28 of the ITE law for broadcasting a news item entitled "Land confiscated by Jhonlin, Dayak complain to the South Kalimantan Police”. Diananta was sentenced to three months and 15 days in prison.
Critics condemned this decision as a serious threat to press freedom because Diananta was carrying out legitimate journalistic functions protected by the Press Law. Also, contrary to claims, it was not found that the article had an impact upon public order, with no evidence it incited ethnic conflict.
Once again, this case concerns a matter of significant public interest, dealing, as it does, with development and environmental issues.
The third case was the subject of a decision on 23 November 2021, when a panel of judges at the Palopo District Court, South Sulawesi, decided that news journalist Muhamad Asrul was guilty of violating Article 45 of the ITE Law. Asrul was sentenced to three months in prison, although the Public Prosecutor had asked for a one-year prison sentence. Asrul’s article concerned possible political corruption involving well connected local political actors.
The judge emphasised that Asrul’s articlehad complied with the relevant standards regulated by the Press Law, and he rejected the prosecutor's indictment, accepting that the article written by Asrul was a ‘journalistic product’. He accepted Asrul's status as a journalist. This should have been sufficient for the charges to be dismissed and the matter referred to the Press Council if there remained a legitimate complaint against the publication. Notwithstanding the judge’s findings, Asrul was still, somewhat puzzlingly, found guilty. However, the judge did not order Asrul to be detained. The decision is being appealed.
Based on these recent cases of violence against, and criminalisation of, journalists, the KKJ stated that these trends demonstrate a continuing threat to the work of journalists. KKJ recommended that President Joko Widodo order all officials, especially law enforcement officers, to respect and protect journalistic activity and to set an example to the community by using the press law where there are disputes about journalism. They ask that the government crackdown on the use of violence and intimidation against journalists and the labelling of legitimate journalistic works as ‘hoaxes’. All public officials should use the disputes mechanism under the Press Law, and not the ITE law, if there are journalistic works about which they have complaints.
KKJ argued that President Joko Widodo should immediately undertake the revision and abolition of the anti-democratic provisions in the ITE Law. Also, the conduct of police who refrain to act against perpetrators of violence against journalists should be urgently reviewed.
Jim Nolan is the International Federation of Journalists’ pro-bono legal counsel for the Asia-Pacific and a regular legal observer on key cases in the region.