May 19, 2010

"Democracy in Indonesia is irreversible and a daily fact of life," President Susilo Bambang Yudhoyono told the World Movement for Democracy's annual assembly, in Jakarta this month. To be sure, Indonesia's transition from authoritarianism to democracy, which began with Suharto's fall in 1998, has been remarkably successful. During Yudhoyono's March visit to Australia, Prime Minister Kevin Rudd proclaimed, "we welcome you now as a member of the family of democracies . . . a nation where freedom of the press is now exercised without constraint, without restraint and without fear of repression."

Yet despite progress in promoting democracy and the rule of law, a relatively free press and abundant news outlets, there are ominous signs that the foundations of democracy are not as sturdy as Jakarta would have the world believe. On a number of occasions in recent years, anti-corruption activists, human rights defenders, journalists, consumers, and private citizens alike have been subjected to criminal investigations, and even imprisonment, merely for engaging in the kind of conduct necessary for the proper functioning of a democratic society.

Indonesians face criminal defamation charges for "intentionally harming someone's honour or reputation", through speech or writing or "insulting" an authority or public body. As new research by Human Rights Watch reveals, these laws have been used by public officials or powerful individuals against their critics a number of times in recent years.

Take the case of two anti-corruption activists, Illian Deta Arta Sari and Emerson Yuntho. In a January 2009 news conference the pair described how a government audit revealed troubling discrepancies in the Office of the Attorney-General's budget. Officials could have responded to their statements by explaining the irregularity or simply denying that they had mishandled recovered funds. Instead, they filed a criminal complaint against Illian and Emerson with the police, accusing the activists of defamation.

Illian and Emerson were no strangers to criminal defamation charges. They, like many other anti-corruption and human rights activists in Indonesia, had faced such charges before, and had begun to consider it an unavoidable risk of their work. They were nevertheless relieved when the police initially declined to pursue the Attorney-General's claim against them.

Months passed. In October, their organisation, Indonesia Corruption Watch, called for the dismissal of senior police and prosecutorial officials after police arrested two members of Indonesia's Anti-Corruption Commission on trumped-up abuse-of-power charges. Only then did the police decide to investigate the 10-month-old criminal defamation complaint. The police have since backed off, but the case against the activists has not been closed.

Their experience is only the tip of the iceberg. Many other anti-corruption activists, journalists, human rights defenders, and ordinary citizens have found themselves the targets of criminal charges for defamation. For those who do not work for well-connected organisations as do Illian and Emerson, the charges can be terrifying and the risk of imprisonment can be very real.

In May 2009, Prita Mulyasari, a mother of two small children, was jailed for three weeks for simply writing a private email to friends complaining about the care she had received from doctors at a local hospital.

In 2008, a journalist, Bersihar Lubis, was convicted of "insulting a public official" after he wrote an opinion column that criticised the Attorney-General's decision to ban a high school history textbook. Lubis told Human Rights Watch, "At the time, I thought, where is democracy?"

Not everyone in Indonesia who airs critical facts or opinions ends up accused of a criminal offence. But the arbitrary enforcement of such laws, and even the mere threat of enforcement, has a damaging chilling effect on civil society, the media, and private citizens' willingness to express critical thoughts or opinions, especially online.

Indonesia's media may be free to report on most news, but when it comes to the most powerful people in society, publishers, editors, and journalists know that a negative report, even if true, could bring serious legal consequences. Such a climate of fear and self-censorship is toxic to the proper functioning of democracy, which depends upon vibrant public debate and official accountability.

International leaders with an interest in promoting democracy in Asia should press Yudhoyono to act on his claims that a new democratic order has come to stay. Yudhoyono should call for the repeal of laws that punish defamation with criminal rather than merely civil penalties. Such laws are archaic anti-democratic relics of a bygone, repressive era for which today's Indonesia has no use. And Yudhoyono should press public officials to stop treating activists, whistleblowers, journalists, and critics like criminals. That would be a true embodiment of the democratic principles he espouses.

Christen Broecker is a New York University School of Law fellow for the Asia Division at Human Rights Watch. She is the author of Human Rights Watch's May 2010 report, Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia.

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