Serious concerns about threats to the independence and freedom of the press by Indonesia’s proposed revised Draft Criminal Code (RKUHP) continue to be voiced, notwithstanding recent attempts by President Jokowi to provide for more consultation with civil society and press freedom groups.
The draft RKUHP, first introduced in 2019, provoked massive demonstrations and was met with widespread condemnation by press freedom and human rights groups. In the light of ferocious opposition, it was withdrawn, only to resurface in recent weeks.
Civil society groups in Indonesia have been advocating for the repeal of numerous objectionable provisions from the current draft since 2019, without success. Despite assurances about consultation, the government appears determined to push the bill through.
The hiatus did not spell a re-think on the part of the government. On July 6, 2022, the government handed over a new revised Draft Bill on the Criminal Code (RUU KUHP) to the Indonesian House of Representatives (DPR) which represented very little progress. The new draft law has again been met with strong opposition. But despite this, the DPR and the government have said they would speed up its ratification without making any substantial changes to the 2019 draft.
The relative haste with which this latest draft was re-introduced was condemned by civil society groups as evidence of the government’s lack of commitment to uphold transparency and inclusivity for all stakeholders, including civil society, to meaningfully consult and voice their concerns. A large coalition of civil society groups condemned this as clearly undermining the ‘fundamental democratic principles that Indonesia has always claimed to the world it stands for’.
There are many aspects of the draft which have drawn criticism, but key provisions still pose real threats to press freedom. According to the well-respected Press Council of Indonesia, there remain 19 articles in the RKUHP that have the potential to criminalise journalistic work. These 19 articles also contradict the spirit of Law Number 40 of 1999 concerning the Press, according to the Council.
Chairman of the Press Council, Azyumardi Azra, at a special press conference on Friday, July 15 (15/7/2022) called for the offending articles to be removed from the draft “because they have the potential to threaten the freedom of the press”.
The articles concerned cover a wide range of issues which impinge upon press freedom. There are now proposed crimes against ‘State Ideology’ (Article 188); Crimes of Insulting the Honour or Dignity of the President and Vice President (Articles 218, 219, 220); a Crime of Broadcasting or Disseminating False News or Notifications, (Articles 263 and 264); the criminalisation of acts of ‘humiliation’ of the Government; the Crime of Broadcasting or Disseminating ‘False News or Notifications’ (Articles 263 and 264); Crimes against Insulting Public Powers and State Institutions (Articles 351-352); and the Crime of Defamation (Article 440).
In the RKUHP, the media will also be prohibited from broadcasting news that has not been verified. If the news does not ‘match the facts’, journalists and the media can be subject to Article 263 and Article 264. Punishments for journalists and media are also ‘tiered’ depending on the impact of the news that occurs in the community. This is a curious requirement which raises the prospect of significant abuse.
Legal specialists have assessed the draft of the RKUHP imposed by the government as full of ‘rubber’ articles. This is a term applied to the ITE law almost since its inception in 2008 when AJI, the IFJ and many press freedom groups warned of its potential to chill press freedom. No clear legal standard is set out in the law, and this can only mean there is ample scope for abuse.
Critics have pointed out that all these objectionable provisions are vaguely and broadly drafted, giving the government and government agencies an almost unfettered discretion that will lead to selective prosecutions and significantly curb freedom of speech and expression in the country.
Critics contend that if passed, the law will substantially create a chilling effect on those exercising their rights while simultaneously creating a culture of self-censorship and a climate of fear.
A broad coalition of civil society groups (‘the Safenet coalition’) argues that, if parliament adopts the current draft, this will represent a significant breach of Indonesia’s human rights obligations, particularly under the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a party. The Covenant recognises that limitation of fundamental freedoms should only occur when strictly necessary and in a proportionate manner. Such vague and overbroad provisions are clearly not consistent with the ICCPR.
Critics point out that there are no public interest defences to any of these offences.
Nor does the new law do anything to address the more serious concerns about real and significant threats to journalists in this new era of cyber-libel, notable for the widespread cyber targeting of journalists, academics, activists, and students, who have faced torrents of cyber-attacks.
Threats to human rights now take a relatively new form being carried out through various digital attacks, including hacking, doxxing (publishing an individual’s personal details with malicious intent), cyber harassment, hacking and spying. These attacks have been directed at human rights defenders, indigenous leaders, environmental activists, anti-corruption activists, and women's groups.
In the 2020 Global Cybersecurity Index report, Indonesia was ranked 24th out of 182 countries. It is considered far from safe. Nothing in the proposed law addresses these concerns.
Ministerial Regulation 5 Threatens to Restrict Press and Internet Freedom
In May 2021, an international coalition of 25 civil society organisations filed an open letter condemning this regulation and urging the government to repeal it. An online petition to protest the regulation has been signed by more than 11,000 netizens. On July 22, 2022, members of the Coalition held a demonstration in front of the office of the Ministry.
The coalition has identified a number of key articles in the regulation which threaten press freedom.
Article 9 (points 3 and 4) firmly forbids private PSEs to publish content containing prohibited information, including those violating the laws, causing public unrest, and disturbing public order.
The terms “causing public unrest” and “disturbing public order” are ‘rubber’ articles. They can be interpreted to target criticisms of public authorities, and police.
The ‘rubber’ article will permit authorities to target critical content, for example, media coverage of crimes or content about human rights violations in Papua. In other words, the regulation can easily be deployed as a tool for the authorities to abuse their power.
Article 14 allows a citizen, civil society groups, state agencies or law enforcement to request the blocking of access to information which, may cause public unrest and disturbs public order.
Articles 21 and 36 require electronic systems operators to provide access for ministries, state agencies, and law enforcement to be able to enter their electronic data and systems for reasons of supervision or ‘assisting’ law enforcement.
Critics warn that this access can be misused by the government to intimidate the media. Granting access to personal data strongly violates the privacy rights of the public, including journalists.
Criminal Defamation and the ITE Law
Despite constant criticism, the Indonesian government has done very little to reform draconian defamation laws, notably Law No.19 of 2016 on Information and Electronic Transactions (‘the ITE Law’). Critics have regularly pointed out the threats to media freedom represented by the ITE law. Its so called ‘rubber articles’ are the antithesis of properly crafted legal provisions which provide protections and legal certainty for citizens.
The latest and most conspicuous example of the dangers of the ITE law came in March 2022, when two environmental Indonesian activists, Haris Azhar, and Fatia Maulidiyanti, were named ‘suspects’ in a defamation case.
The complaint alleging defamation was brought by the Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan, arguably the most senior and powerful minister in Jokowi’s cabinet. He complained about a YouTube video in which the two activists discussed alleged connections between mining businesses and military operations in Papua. They claimed Luhut was implicated as a shareholder of one of the companies operating in the region.
Present indications are that the government will press forward with the Draft Criminal Code (RKUHP), despite the continuing opposition. Perhaps critics will now have to concentrate on highlighting the threat to Indonesian press freedom in November when Indonesia chairs the G20 conference in Bali.
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