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X. Appendix: Communication to Indonesian Government Officials
Letters to Indonesian government officials, with their replies where received.
February 2, 2010
Tifatul Sembiring
Minister of Communications and Information Technology
Jl. Medan Merdeka Barat No.9
Jakarta Pusat
Republic of Indonesia
Re: Criminal Defamation Provisions of the Law Regarding Electronic Information and Transactions
Dear Minister Sembiring,
Human Rights Watch is an international nongovernmental organization that monitors violations of human rights in more than 80 countries around the world.
Human Rights Watch is preparing a report regarding the application of criminal defamation law in Indonesia, drawing on specific examples and analyzing the response of law enforcement officials. We are writing to request information that will ensure that our report properly reflects the views, policies, and practices of the government of Indonesia regarding criminal defamation law, particularly Law No. 11/2008 Regarding Electronic Information and Transactions (ITE Law).
Human Rights Watch is committed to producing material that is well-informed and objective. We hope you or your subordinates will respond to the attached questions so that your ministry’s views are accurately reflected in our reporting. In addition to the information requested below, please include any other materials, statistics, and government actions regarding the enforcement of the criminal defamation provisions of the Law Regarding Electronic Information and Transactions in Indonesia that you think might be relevant. In order for us to take your answers into account in our forthcoming report, we would appreciate a written response by March 1, 2010.
Thank you for your time in addressing these urgent matters.
Sincerely,
Brad Adams
Executive Director, Asia Division
Cc:
Coordinating Min. for Political, Legal, & Security Affairs, Djoko Suyanto
Speaker of the House of Representatives, Marzuki Alie
Chairman, DPR Commission I (Defense, Foreign Affairs, and Information), Kemal Azis Stamboel
Attorney General, Hendarman Supandji
Chief of National Police, Gen. Bambang Hendarso Danuri
Ambassador to the UN, H.E. Marty Natalegawa
Ambassador to the US, H.E. Sudjadnan Parnohadiningrat
Questions Concerning the Criminal Defamation Provisions of Law No. 11/2008 Regarding Electronic Information and Transactions
We would appreciate any information you can provide regarding the following:
I. Background and statistical information:
Please provide data for 2008 and for 2009 regarding the enforcement of articles 27 and 45 of the Law Regarding Electronic Information and Transaction (ITE law).
1. In how many cases did police investigate criminal defamation complaints based on the ITE law? Of these, how many were based on complaints filed by government officials?
2. In how many instances did prosecutors charge individuals with violating articles 27 and 45 of the ITE Law? Of these, how many were based on complaints filed by government officials?
3. Were any individuals convicted of criminal defamation under the ITE Law? If so, what sentences did they receive? How many cases resulted in acquittals?
II. Legal and Policy Framework
1. Human Rights Watch’s investigations have found that in a number of instances since 2008, Indonesian police, prosecutors, and judges have used the criminal defamation provisions of the ITE Law apparently to investigate or punish individuals who had otherwise lawfully engaged in:
- Filing complaints with the authorities;
- Publicly airing consumer complaints;
- Critical reporting by the media;
- Engaging in non-violent activism against misconduct by candidates for public office.
Please describe any government policies designed to prevent the misuse of the ITE Law. Please also indicate the standard used to determine when statements raised in such contexts give rise to criminal liability for defamation under the ITE Law.
2. A 2005 police regulation issued by Brig. Gen. Uwarto, SH, Director of the Criminal Investigation Bureau of the National Police (Police No. B/345/iii/2005/Bareskrim), stated that “officials who have been reported to engage in corruption, have retaliated by reporting the informant to the Indonesian National Police (Polri) for defamation,” and that defamation claims should be handled “with the aim that those cases do not [obscure] the handling of corruption that is the main issue of the case.”
- Please indicate whether this regulation is binding on the police and/or prosecutors investigating potential violations of the criminal defamation provisions of the ITE Law and what steps have been taken to ensure that individuals who report corruption are not investigated on defamation charges before their allegations have been fully investigated.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to adhere to this regulation since 2008, and if so, what sort of action and in how many instances.
- Please indicate whether any other regulations instruct law enforcement officials to resolve allegations of misconduct other than corruption before investigating or prosecuting retaliatory defamation claims based on the ITE Law.
- Please indicate whether any official regulations prohibit government officials from filing defamation claims under the ITE Law in response to allegations of corruption or other misconduct.
3. In 2006, Indonesia’s Supreme Court held that authorities should have applied the Press Law, Law No. 40/1999, to a criminal defamation complaint against Bambang Harymurti, the corporate editor-in-chief of Tempo, and overturned a one-year prison sentence handed down against him by a lower court. Please indicate whether the Press Law or the criminal defamation provisions of the ITE Law are intended to apply to journalists, editors, opinion columnists, and authors of letters to the editor and under what circumstances, and identify what official regulations or policies articulate these distinctions.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to apply the Press Law in defamation cases brought pursuant to the ITE Law against these categories of people since 2008, and if so, what sort of action and in how many instances.
4. Article 4 of the Consumer Protection Law, Law No. 8/1999, provides that consumers have a right to have their opinions and complaints about goods and services heard and that the right to advocacy, protection, and dispute resolution efforts “are worthy of consumer protection.” In 2007, the Directorate General of Domestic Trade sent a letter to a private business that had filed criminal defamation charges against a consumer who had written a negative letter to the editor about the business. In the letter, the Directorate General stated that the Consumer Protection Law protects an individual’s right to convey consumer complaints in the form of a letter to the editor of a newspaper.
- Please indicate whether the Consumer Protection Law protects individuals from incurring criminal liability for defamation under the ITE Law when they publicize their complaints about goods and services, and if so, what government policies articulate this.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to apply the Consumer Protection Law in defamation cases under the ITE Law since 2008. If yes, what sort of action, and in how many instances?
5. What concrete measures is your ministry taking to prevent law enforcement individuals from committing other procedural irregularities or violations in the course of investigating criminal defamation complaints under the ITE Law, including:
- Demanding bribes from the accused ;
- Failing to initially question the subjects of criminal defamation complaints as witnesses rather than suspects;
- Waiting as long as nine months after a complaint has been filed to begin investigating it;
- Questioning individuals on defamation charges in inappropriate settings like hotel rooms;
- Failing to provide suspects in defamation cases with written documentation describing the charges and the basis of the claim against them.
6. Please indicate whether you believe civil defamation law (currently, as articulated in articles 1365 and 1372 of the Civil Code of Indonesia) provides an adequate remedy for citizens who feel they have been defamed in situations where the defamation provisions of the ITE Law currently apply, and why or why not.
7. The UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has repeatedly stated that imprisonment should never be applied as a punishment for defamation and that recommended that states repeal their criminal defamation laws and rely on civil defamation laws instead. Do you intend to take account of this recommendation and to seek the repeal of the criminal defamation provisions of the ITE Law? If yes, please indicate the steps you intend to take. If no, please indicate why not.
8. The UN special rapporteur has advised that states should take particular care to ensure that defamation laws—civil or criminal—are not used by public officials regarding matters that relate to their actions in public office, as defamation laws “should never be used to prevent criticism of government,” and “should reflect the principle that public figures are required to tolerate a greater degree of criticism than private citizens.” Do you intend to take account of this recommendation and to seek to amend the defamation provisions of the ITE Law to provide heightened standards for use of those provisions by government officials? If yes, please indicate the steps you intend to take. If no, please indicate why not.
9. The UN special rapporteur has outlined a list of minimum requirements that civil defamation laws must satisfy in order to comply with article 19 of the International Covenant on Civil and Political Rights, which Indonesia ratified in 2006. (See UN Doc. E/CN.4/2000/63 para. 52., available at http://documents.un.org/.) Do you intend to take account of this recommendation and to seek to amend the ITE Law to include civil defamation provisions that reflect these conditions? If yes, please indicate the steps you intend to take. If no, please indicate why not.
* * *
February 2, 2010
Patrialis Akbar
Minister of Law and Human Rights
Department of Justice
Jl. H.R. Rasuna Said Kav. 6-7 Kuningan Jakarta 12940
Republic of Indonesia
Re: Indonesia’s Criminal Defamation Laws
Dear Minister Akbar,
Human Rights Watch is an international nongovernmental organization that monitors violations of human rights in more than 80 countries around the world.
Human Rights Watch is preparing a report regarding the application of criminal defamation law in Indonesia, drawing on specific examples and analyzing the response of law enforcement officials. We are writing to request information that will ensure that our report properly reflects the views, policies, and practices of the government of Indonesia regarding criminal defamation law.
Human Rights Watch is committed to producing material that is well-informed and objective. We hope the relevant officials will respond to the attached questions so that the government’s views are accurately reflected in our reporting. In addition to the information requested below, please include any other materials, statistics, and government actions regarding criminal defamation law in Indonesia that you think might be relevant. In order for us to take your answers into account in our forthcoming report, we would appreciate a written response by March 1, 2010.
Thank you for your time in addressing these urgent matters.
Sincerely,
Brad Adams
Executive Director, Asia Division
Cc:
Coordinating Min. for Political, Legal, & Security Affairs, Djoko Suyanto
Speaker of the House of Representatives, Marzuki Alie
Chairman, DPR Commission III (Law and Human Rights), Benny K. Harman
Attorney General, Hendarman Supandji
Chief of National Police, Gen. Bambang Hendarso Danuri
Ambassador to the UN, H.E. Marty Natalegawa
Ambassador to the US, H.E. Sudjadnan Parnohadiningrat
Questions Concerning Indonesia’s Criminal Defamation Laws
We would appreciate any information you can provide regarding the following:
I. Background and statistical information:
Please provide data for 2008 and for 2009 (or the two most recent years for which statistics are available) regarding the application of Indonesia’s criminal defamation laws. Specifically, this letter seeks information regarding the enforcement of articles 207, 310, 311, 315, 316, and 355 of the Criminal Code and articles 27 and 45 of Law No. 11/2008 Regarding Electronic Information and Transaction (ITE law).
- How many criminal defamation complaints were received by the Indonesian police? Of these, how many complaints were filed by government officials?
- How many of criminal defamation complaints were sent to prosecutors following investigation? Of these, how many were filed by government officials?
- How many of the above cases resulted in charges for criminal defamation being brought?
- How many individuals were convicted of criminal defamation and what sentences did they receive? How many cases resulted in acquittals?
II. Legal and Policy Framework
- Human Rights Watch’s
investigations have found that in a number of instances in recent years,
Indonesian police, prosecutors, and judges have used criminal defamation
law apparently to punish individuals who had otherwise lawfully engaged
in:
- Seeking information from and filing complaints with the authorities;
- Publicly airing business disputes and consumer complaints;
- Critical reporting by the media;
- Engaging in non-violent activism against corruption and misconduct by public officials.
Please describe any government policies designed to prevent the misuse of criminal defamation law. Please also indicate the standard used to determine when statements raised in such contexts give rise to criminal liability for defamation.
- A 2005 police regulation issued
by Brig. Gen. Uwarto, SH, Director of the Criminal Investigation Bureau of
the National Police (Police No. B/345/iii/2005/Bareskrim), stated that
“officials who have been reported to engage in corruption, have
retaliated by reporting the informant to the Indonesian National Police
(Polri) for defamation,” and that defamation claims should be
handled “with the aim that those cases do not [obscure] the handling
of corruption that is the main issue of the case.”
- Please indicate whether this regulation is binding on the police and/or prosecutors and what steps have been taken to ensure that individuals who report corruption are not investigated on defamation charges before their allegations have been fully investigated.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to adhere to this regulation since 2005, and if so, what sort of action and in how many instances.
- Please indicate whether any other regulations instruct law enforcement officials to resolve allegations of misconduct other than corruption before investigating or prosecuting retaliatory defamation claims.
- Please indicate whether any official regulations prohibit government officials from filing defamation claims in response to allegations of corruption or other misconduct.
- In 2006, Indonesia’s Supreme Court held that authorities should have applied the Press Law,
Law No. 40/1999, to a criminal defamation complaint against Bambang
Harymurti, the corporate editor-in-chief of Tempo, and overturned a
one-year prison sentence handed down against him by a lower court. Yet in
a number of cases investigated by Human Rights Watch, law enforcement
officials declined to apply the Press Law and prosecuted and/or
investigated journalists, editors, opinion columnists, and authors of
letters to the editor on criminal defamation charges.
- Please indicate whether the Press Law is intended to apply to the categories of people indicated above and under what circumstances, and identify what official regulations or policies articulate these distinctions.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to apply the Press Law in defamation cases against these categories of people since 2006, and if so, what sort of action and in how many instances.
- Article 4 of the Consumer
Protection Law, Law No. 8/1999, provides that consumers have a right to
have their opinions and complaints about goods and services heard and that
the right to advocacy, protection, and dispute resolution efforts
“are worthy of consumer protection.” In 2007, the Directorate General
of Domestic Trade sent a letter to a private business that had filed
criminal defamation charges against a consumer who had written a negative
letter to the editor about the business. In the letter, the Directorate
General of Domestic Trade stated that the Consumer Protection Law protects
an individual’s right to convey consumer complaints in the form of a
letter to the editor of a newspaper.
- Please indicate whether the Consumer Protection Law protects individuals from incurring criminal liability for defamation when they publicize their complaints about goods and services, and if so, what government policies articulate this.
- Please indicate whether any remedial action has been taken against law enforcement officials for failure to apply the Consumer Protection Law in defamation cases since 2006. If yes, what sort of action, and in how many instances?
- What concrete measures is the
government of Indonesia taking to prevent law enforcement individuals from
committing other procedural irregularities or violations in the course of
investigating criminal defamation complaints, including:
- Demanding bribes from the accused;
- Failing to initially question the subjects of criminal defamation complaints as witnesses rather than suspects;
- Waiting as long as nine months after a complaint has been filed to begin investigating it;
- Questioning individuals on defamation charges in inappropriate settings like hotel rooms;
- Failing to provide suspects in defamation cases with written documentation describing the charges and the basis of the claim against them.
- Please indicate whether you believe civil defamation law (currently, as articulated in articles 1365 and 1372 of the Civil Code of Indonesia) provides an adequate remedy for citizens who feel they have been defamed, and why or why not.
- The UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has repeatedly stated that imprisonment should never be applied as a punishment for defamation and that recommended that states repeal their criminal defamation laws and rely on civil defamation laws instead. Do you intend to take account of this recommendation and to call for the repeal of criminal defamation laws? If yes, please indicate the steps you intend to take. If no, please indicate why not.
- The UN special rapporteur has advised that states should take particular care to ensure that defamation laws—civil or criminal—are not used by public officials regarding matters that relate to their actions in public office, as defamation laws “should never be used to prevent criticism of government,” and “should reflect the principle that public figures are required to tolerate a greater degree of criticism than private citizens.” Do you intend to take account of this recommendation and to seek to amend Indonesia’s civil and/or criminal defamation laws to provide heightened standards for use of such laws by government officials? If yes, please indicate the steps you intend to take. If no, please indicate why not.
- The UN special rapporteur has outlined a list of minimum requirements that civil defamation laws must satisfy in order to comply with article 19 of the International Covenant on Civil and Political Rights, which Indonesia ratified in 2006. (See UN Doc. E/CN.4/2000/63 para. 52., available at http://documents.un.org/.) Do you intend to take account of this recommendation and to seek to amend Indonesia’s civil defamation laws to reflect these conditions? If yes, please indicate the steps you intend to take. If no, please indicate why not.
March 24, 2010
Gen. Bambang Hendarso Danuri
Chief of National Police
Jl. Trunojoyo No. 3
Jakarta Selatan
Indonesia
Re: Indonesia’s Criminal Defamation Laws
Dear Gen. Danuri,
Human Rights Watch is an international nongovernmental organization that monitors violations of human rights in more than 80 countries around the world.
I am writing in regards to a February 8, 2010 letter sent to you by Brad Adams, Executive Director of the Asia Division of Human Rights Watch, on the subject of criminal defamation law in Indonesia. The letter was addressed to Minister of Law and Human Rights Patrialis Akbar. However, you were listed as an additional recipient of the letter and it was delivered via facsimile to your office.
On March 12, 2010, I received a letter from the Directorate General of Human Rights at the Ministry of Law and Human Rights informing us that your office and the office of the Attorney General are the institutions in the best position to address these questions.
Please consider this letter a direct request for your response to the questions contained in our February 8 letter, which I have attached to this communication for your convenience. In order for us to take your answers into account in our forthcoming report, we would appreciate a written response by April 15, 2010.
Thank you for your time in addressing these urgent matters.
Sincerely,
Elaine Pearson
Deputy Director, Asia Division
* * *
March 24, 2010
Hendarman Supandji
Attorney General
Kejaksaan Agung RI
Jl. Sultan Hasanuddin No. 1
Jakarta Selatan
Indonesia
Re: Indonesia’s Criminal Defamation Laws
Dear Mr. Supandji,
Human Rights Watch is an international nongovernmental organization that monitors violations of human rights in more than 80 countries around the world.
I am writing in regards to a February 8, 2010 letter sent to you by Brad Adams, Executive Director of the Asia Division of Human Rights Watch, on the subject of criminal defamation law in Indonesia. The letter was addressed to Minister of Law and Human Rights Patrialis Akbar. However, you were listed as an additional recipient of the letter and it was delivered via facsimile to your office.
On March 12, 2010, I received a letter from the Directorate General of Human Rights at the Ministry of Law and Human Rights informing us that your office and the office of the National Police are the institutions in the best position to address these questions.
Please consider this letter a direct request for your response to the questions contained in our February 8 letter, which I have attached to this communication for your convenience. In order for us to take your answers into account in our forthcoming report, we would appreciate a written response by April 15, 2010.
Thank you for your time in addressing these urgent matters.
Sincerely,
Elaine Pearson
Deputy Director, Asia Division
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