III. THE USE OF COLONIAL LEGISLATION AND SOEHARTO-ER

PRACTICES TO DETAIN POLITICAL ACTIVISTS

Although political space for dissent has increased enormously since the fall of Soeharto, broadly worded laws limiting freedom of expression remain on the books, and continue to enable authorities to arbitrarily target individuals. These laws, on their face and in their application, violate the fundamental right to freedom of expression. Article 19 of the Universal Declaration of Human Rights, which is widely regarded as reflecting customary international human rights law, states: "Everyone has the right to freedom of opinion and expression."⁴

Article 28 of Indonesia's 1945 Constitution refers to freedom of expression, but subsequent legislation and regulations restricted this basic right.⁵ The result is that, by law, Indonesians can still be imprisoned for "insulting" the president, or expressing "feelings of hatred" against the government, even if such sentiments are offered as part of a peaceful exercise of political dissent.

For the purposes of this report Human Rights Watch has looked specifically at non-violent activists who have been arrested, detained, and convicted under two groups of articles in the Indonesian Criminal Code (KUHP).⁶

· The "lese majeste" articles of KUHP. Articles 134, 136, and 137 criminalize "insulting" the president or vice-president of Indonesia and provide criminal penalties for anyone who "disseminates, demonstrates openly or puts up a writing or portrait containing an insult against the president or vice-president." The articles authorize prison terms of up to six years for violations.

· The "hate sowing" (Haatzai Artikelen) articles of KUHP. Articles 154, 155, and 156 criminalize "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." The articles authorize prison terms of up to seven years for violations.

Left over from the Dutch colonial administration, these articles were often used by the Soeharto government to restrict free expression. Political opponents, critics, students, and human rights defenders were targeted and silenced. Not only are the articles subject to over-broad interpretation, but their very essence is to limit the rights of individuals to free expression. They also violate the spirit of Indonesia's constitution, which had sought to protect this right at the time of independence.

During the recent trial of an activist on charges of insulting President Megawati, the defense summed up these arguments by stating:

In articles 134 and 137 (1) of KUHP the substance of the criminal act is not really clear. The consequence is that it opens up opportunities for the authorities, represented in this matter by the police and the prosecutors, to carry out an authoritarian interpretation against the actions of an individual; whether it is an action, a word, or even a thought, which is different from the official opinion of the authorities. This is indeed dangerous for the development of the democratic process, human rights, and the development of law in Indonesia.⁷

Human rights groups and reformists, in Indonesia and abroad, had hoped that in a democratic Indonesia these articles would be repealed. Munarman, Chair of the Indonesia Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum Indonesia or YLBHI) in Jakarta, told Human Rights Watch: "There are only two ways to stop the law being used to oppose politics. You can stop using it in practice, but this is really not strong enough. To be effective you have to rescind it from KUHP."⁸

Since Megawati came to power this legislative legacy has been resurrected, not eradicated, by her administration. Given the number of high-profile issues swirling in Indonesia at the moment, little international or domestic attention has been given to these developments. But free expression is a necessary condition for the exercise of all other rights, and these prosecutions cast a shadow over all the human rights gains made in Indonesia since the fall of Soeharto. Rachland Nashidik, Program Director of IMPARSIAL, told Human Rights Watch:

This is the first time since the New Order that we have political trials again. I don't know if it will continue ... the government will take stronger steps to imprison people using these draconian laws ... It has been a long-time demand to take the articles out ... The repeal of the provisions have to be part of major reform in Indonesia.⁹

Human Rights Watch calls on the Indonesian government and parliament to repeal the laws on insulting the president and vice president and the "hate-sowing" legislation. Until then, the Indonesian government must make a public commitment not to undertake any further prosecutions using these laws, drop any pending charges under these provisions, and release all persons detained or imprisoned for violation of these laws.

4 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 19. Similar language is found in the International Covenant on Civil and Political Rights, to which Indonesia is not a party.

5 1945 Constitution of the Republic of Indonesia, article 28 ("Freedom of association and assembly, of verbal and written expression and the like, shall be prescribed by law").

6 KUHP (Kitab Undang-Undang Hukum Pidana, Indonesian Criminal Code).

7 Trial Document: "Defense Submission in the Kias Tomo Case," October 30, 2002 (copy of Indonesian language original on file at Human Rights Watch).

8 Human Rights Watch interview with Munarman, Chair of YLBHI (Yayasan Lembaga Bantuan Hukum Indonesia, Indonesian Legal Aid Foundation), Jakarta, November 20, 2002.

9 Human Rights Watch interview with Rachland Nashidik, Program Director, IMPARSIAL, Jakarta, November 19, 2002.