The ruling by Indonesia's Constitutional Court last week to declare unconstitutional a set of laws that protected Indonesia's leaders from peaceful political criticism was a surprisingly bold decision that, if fully implemented by the government, augurs well for the rule of law and freedom of expression. It also raised hopes that the court will tackle the myriad other repressive legislation that remains on Indonesia's books.
Court chairman Jimly Assiddiqie said that the three articles of the code regarding insults against the head of state and vice president "now have no binding legal power."
These colonial-era laws in Indonesia's Criminal Code have been used -- not just in the Soeharto period but also in 2006 -- to jail political opponents and any critic who, as the law says, "disseminates, demonstrates openly or puts up writing or a portrait containing an insult against the president or vice-president." This kind of legislation, and its enforcement by police and prosecutors, is of course incompatible with democracy and completely contrary to Indonesia's domestic and international commitments to freedom of expression.
People like lawyer Eggi Sudjana, who is currently facing charges for insulting the president at a rally, and who had requested the constitutional review of the articles in question, should no longer live in fear of facing legal retaliation for expressing their views peacefully.
For the court's remarkable decision to have real meaning, the government must quickly act to implement the letter and spirit of its decision. A public statement that it will do so would be a good first step.
More concretely, all those currently imprisoned under the law struck down by the court should be immediately and unconditionally released. Others imprisoned under similar laws restricting free expression should also be released. The government should instruct prosecutors to drop all pending charges for peaceful political expression and not to file any such cases in the future.
The government should then work with the House of Representatives, legal groups and rights advocates to identify laws that unnecessarily restrict free expression and amend or repeal them. Although political space for dissent has increased enormously in Indonesia since the fall of Soeharto, many broadly or ambiguously worded laws limiting freedom of expression remain on the books, allowing authorities to arbitrarily target individuals. If President Yudhoyono and his government are serious about the democratization process and reform, these laws must go.
The place to start is with Indonesia's Criminal Code, which is currently being revised. The drafters of the new code should remove any provisions inconsistent with the letter and spirit of the Constitutional Court's decision. This would include the notorious "hate sowing" (Haatzai Artikelen) articles, which criminalize the "public expression of feelings of hostility, hatred or contempt toward the government" and prohibit "the expression of such feelings or views through the public media". These articles authorize prison terms for violations, and have also been used in the past to target and imprison non-violent critics of the government.
In April 2005, Yusak Pakage and Filep Karma were sentenced to 10 and 15 years in prison respectively for having raised the Papuan independence flag. Among the charges against them was "publicly stating hostility, feelings of hate or offense toward the government of the Republic of Indonesia." Human Rights Watch has documented other similar cases in "A Return to the New Order?" (https://www.hrw.org/reports/2003/indon0703/)
In addition, defamation remains a criminal offense in Indonesia and is punishable by up to four years in prison. Unless they are inciting violence, journalists should never be imprisoned for the words they write. Although Indonesia's press is one of the freest in the region, the only sure way to preserve press freedom is to repeal this law.
Threats to freedom of expression are not a small problem in Indonesia. At the end of November censors in Indonesia banned the showing of four films at Jakarta's International Film Festival. They were deemed too "disturbing" to be shown at the festival. If the filmmakers or distributors had shown the film, they would have been subject to prosecution.
From flag raising in Papua to caricaturing government leaders in Jakarta's tabloids, all forms of peaceful expression should be protected, not penalized, by law. Free expression is a necessary condition for the exercise of all other rights. Without this basic right, Indonesia's development as a democratic nation will continue to be restricted.
Soeharto is no longer in power but many of the institutions he created and nurtured remain. They have deep roots in both political culture and law. Dismantling a 32-year legacy of authoritarianism cannot happen overnight. This will require committed, reform-minded political leadership. The decision to throw out the lese majeste articles of Indonesia's Criminal Code is a good start. But more needs to be done.
The writer is Human Rights Watch's Indonesia researcher.
