Easily Abused Provisions Chill Expression
(Jakarta) - Indonesia's legislature should repeal a number of laws that allow powerful persons, including public officials, to bring criminal charges against activists, journalists, consumers, and others who criticize them, Human Rights Watch said in a report released today.
The 91-page report, "Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia," documents recent cases in which criminal libel, slander, and "insult" laws have been used to silence public criticism. Criminal defamation charges have been filed against individuals after they held public demonstrations protesting corruption, wrote letters to the editor complaining about fraud, registered formal complaints with the authorities, and published news reports about sensitive subjects.
"Criminal defamation is a potent weapon for those who want to silence critics in Indonesia," said Elaine Pearson, deputy Asia director at Human Rights Watch. "The government ought to be encouraging whistle-blowers and people who express their concerns peacefully to speak out freely, instead of punishing them."
In a majority of the criminal defamation cases examined in the report, the complaints appear to have been used to retaliate against people who had made allegations of corruption, fraud, or misconduct against powerful interests or government officials. The authorities were alleged to have used improper or intimidating conduct in some of the criminal defamation investigations.
In one case, the Office of the Attorney General filed criminal charges against anti-corruption activists who had identified possible discrepancies in its accounting of funds recovered from graft cases. The police initially did not investigate the claim, but nine months later, shortly after the activists called for the resignation of the head of the police in a separate anti-corruption campaign, the activists were summoned for questioning on the defamation complaint.
Prita Mulyasari was jailed for three weeks away from her very young children and spent over 12 months in the criminal justice process simply for sending an email to friends complaining about medical treatment she received. Bersihar Lubis, a veteran journalist, was convicted of defamation and given a suspended jail sentence for writing an opinion column criticizing the attorney general's decision to ban a high school history textbook.
Criminal defamation investigations and prosecutions can have a dramatic impact on the lives of those accused, Human Rights Watch found. Some of those charged with defamation lost their jobs and found it difficult or impossible to find new work. Others suffered professional setbacks while they endured lengthy prosecutions, some of which lasted for years. Some reported that their personal and professional relationships were strained by the stigma of prosecution or conviction. Some, like the journalist Risang Bima Wijaya, ended up behind bars.
Human Rights Watch found that criminal defamation laws have a chilling effect on people's willingness to express critical thoughts or opinions. As Risang Bima Wijaya told Human Rights Watch, "It was like an infection with other journalists when they found out [about his conviction]."
In 2008, Indonesia's legislature enacted a new internet law that sets forth the harshest penalties to date for defamation that appears online. The increased prison terms and fines pose an increasingly powerful threat to private citizens who express their thoughts or opinions online, as Prita Mulyasari discovered when authorities placed her in detention on the mere suspicion that she had sent a defamatory email.
"Investigations and prosecutions under criminal defamation laws can have a disastrous effect on those accused," Pearson said. "The threat of imprisonment makes people think twice before speaking out against corruption and misconduct."
Indonesian law contains a number of vaguely drafted criminal defamation provisions. The criminal code prohibits individuals from intentionally publicizing statements that harm another person's reputation, in many cases even if those statements are true. It imposes harsher penalties for defaming public officials than other people and includes an additional charge for deliberately "insulting" a public official, even if the statements are true. The new internet law punishes defamation sent over the internet with up to six years imprisonment and fines of up to Rp1 billion (approximately US$106,000).
International human rights law allows states to restrict freedom of expression to protect the reputations of others, but such restrictions must be necessary and narrowly drawn. Human Rights Watch believes that criminal penalties are always disproportionate remedies for harm caused to reputations.
Human Rights Watch called on Indonesia to repeal its defamation laws, replacing them with civil defamation provisions that contain adequate safeguards to protect freedom of expression from unnecessary limitations. In the meantime, public officials in particular should refrain from filing criminal defamation claims when the criticism against them relates to things they have done or are alleged to have done in their official capacity, Human Rights Watch said.
"Criminal defamation laws undermine democracy, the rule of law, and freedom of expression in Indonesia," Pearson said. "The government should not send those brave enough to speak their minds to prison."
Testimony from people prosecuted or convicted for criminal defamation in Indonesia:
"When I began doing demonstrations, I didn't think it was against the law. Reporting the corruption case is not criminal, but when I did that, I was prosecuted.... Because we were in the courts, people were calling us criminals. Even the district chief called us an ‘illegal organization.' A group said our organization should be dissolved because we had engaged in criminal behavior.... It's hard to work with other organizations now. I was so disappointed. I felt like a public enemy, and I still do now."
- Zamzam Zamaludin, advisor to an anti-corruption student group who was tried on criminal defamation charges related to an anti-corruption demonstration the group coordinated in Tasikmalaya in July 2008.
"It is hard for people to understand us. They say don't get into trouble. They don't understand we are fighting for our rights. We're more than 40 years old, and it's the first time that we are involved with the law. We had never even been in a police station before, and then all of this happened.... I am scared that if we do anything, we will be sent to jail."
-Kwee "Winny" Meng Luan, who was convicted of criminal defamation and sentenced to probation in July 2009 for writing letters to the editor alleging real estate fraud in connection with the purchase of a store in Jakarta.
"I feel that I did nothing wrong. I think the government might be broken. Why should people asking questions be suspected like this? ... My family members are worried [that] I will be convicted and have to go to prison."
-Tukijo, a farmer charged with criminal defamation for asking a local official to disclose the results of a land assessment. He was convicted on the charges in early 2010 following his interview with Human Rights Watch.
"I sent a private email to friends about what really happened and suddenly I am made a criminal. I had to go to prison, I had to go to court.... I'm worried about the future.... I want to continue my life.... I don't want my kids to know that their mother was in jail.... When I'm walking in the mall I still feel like an ex-prisoner.... I feel inferior ... I don't know how to complain again."
-Prita Mulyasari, who was detained and tried on criminal defamation charges in Jakarta in 2009 related to an email she sent to friends criticizing doctors at a hospital where she had medical problems.