Law and justice: The game of puppeteers

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Independent Observer

IO, Jakarta – Sandiaga Salahuddin Uno’s statement about the law being misused to attack one’s opponents and protect one’s allies is a reality during President Joko Widodo’s era. How could it be otherwise? More than 20 were reported by Prabowo’s supporters towards Jokowi’s sympathizers, yet not one of them were arrested. “Despite all reports submitted, no arrests were made, while we have already submitted both evidence and witnesses,” said Habiburrahman, spokesman of National Committee to Elect (Badan Pemenangan Nasional – “BPN”) Prabowo-Sandi.

On the other hand, according to Prabowo-Sandi BPN Spokesman Wihadi Wiyanto, cases reported by the people against Prabowo sympathizers are responded to more quickly. Buni Yani was sentenced to 18 months of imprisonment for hate speech by the District Court of Bandung; then, Ahmad Dhani was sentenced to 1.5 years of imprisonment for the same reason. Other names include Bahar Smith, who was reported to the police for abuse of a minor. Even though he was initially reported for suspected insult of the President, he was finally arrested based on video evidence of abuse of a minor.

Habiburrahman reported that many similar cases of hate speech involving tweets remain uninvestigated and unpunished. For example, reports of death threats towards Fadli Zon. A netizen freely discussed to kill Fadli Zon and a number of opposition figures in 2017. The case was reported, but nobody was arrested, despite the case having been reported over a year ago. Finally, Prabowo sympathizers reported the Regent of Boyolali, Seno Samodro, during the protests held “In Defense of Boyolali Looks” with expletives and insults of Prabowo held last year. The case is now transferred to the Central Java Regional Precinct. It is currently being investigated after an initial report made in November 2018.

Laws during the Jokowi Era
According to State Administration Expert Margarito Kamis, President Jokowi places himself as a person uninvolved with law enforcement in certain cases. He claimed that he leaves everything in the hands of the police. On the other hand, when an event is related to him, Jokowi would present himself as a person responsible for law enforcement and instruct the police to uphold the law – such as in the case relating to the housewives who are members of the Housewives for Prabowo Subianto-Sandiaga Uno Party (Partai Emak-Emak Pendukung Prabowo Subianto-Sandiaga Uno – “Pepes”) in Karawang. Soon after the case cropped up, the President requested the police to ensure that the law is being upheld. Therefore, we cannot disagree that Jokowi is a very inconsistent man. “Here, we can also see that the law, to borrow the words of Vice-Presidential Candidate 02 Pak Sandi, is a tool that is used to hit out against people opposing Pak Jokowi,” Margarito said.

Until now, we still have not found actual proof that the law is being upheld. In Yogyakarta, there was a case of unrest during Prabowo’s State address recently. This proves, and it is reasonable to conclude, that there is something wrong in law enforcement. If it seems to damage or obstruct Jokowi’s political position, then the law will be put into effect immediately, but if it seems to be a damage to Prabowo’s team, it will be let it alone. For example, the unrest in North Sumatra was processed quickly and eleven members of the Islamic Defenders’ Front (Front Pembela Islam – “FPI”) were arrested. There was also the case of a village headman getting imprisoned for 2 months for publicly claiming support of Prabowo-Sandi, but several District Heads in Makassar made a similar claim of support for Jokowi-Ma’ruf Amin and were not prosecuted. “We have not seen any positive or constitutional response from the President when handling these issues. Laws that are related to politics are fully used to hit people who oppose Pak Jokowi,” Margarito said.

Chudry Sitompul, a Law Observer from University of Indonesia, stated that according to World Justice Project (WJP) Indonesia survey, Indonesia’s rank of legal certainty and justice is 62nd of 162 countries being surveyed. This rank remained stagnant for a number of years, rising only one rank this year. This means that law enforcement in Indonesia in 2017-2018 is still not far from when Indonesia first amended the 1945 Constitution in 2002. The leap of law enforcement rank in Indonesia in the Reform Era occurred because of a clear separation of power as delineated by Montesquieu, ensuring that the power of the judicial power is independent, free and separate from interference from other powers in the State. Therefore, judicial power cannot be placed under anyone’s influence, especially by that of executive power. However, after that leap, the ranking did not move, meaning that the powers other than the judicial one do not show any progress in the effort to provide legal certainty and justice.

Chudry further said that the powers controlled by the Government, i.e. the police and the attorney’s office, bring cases to court. This means that we need to improve the performance of the police and attorney’s office, meaning that it is their professionalism and integrity that must be raised. Their professionalism is currently sufficient, but integrity in law enforcement still suffer from transactional issues. Nearing the elections, there are many complaints directed towards the police about how law enforcement and election violations are not balanced. For example, the case of Slamet Maarif shows that the police rushed to a conclusion, causing him to go free. This is because the police concluded that the criminal elements suspected against Slamet Maarif were not proven. There are still many other cases where the opposition has reason to doubt the integrity and neutrality of law enforcement. These are the things that are most monitored about law enforcement as the elections are coming closer. The people need to be assured that they will not take sides and remain impartial.

Agustinus Pohan, Law Observer from Parahyangan University, states that there are still so many problems with law enforcement during Jokowi’s era. There has been little change within 4 years, just about everything is still the same as in the previous era before. There are still many complaints from people concerning the weak economy: there is a marked difference between the people with better economic condition or better education. Those with a weaker economy and lower education do not have equal access to justice.

In other words, our law enforcement index according to the WJP that rose only 0.1 is stagnant. The legal problems in Indonesia have their roots in material law, in law enforcement. Yet when Soeharto’s reign fell during reforms, we were not busy with improving our law enforcement; we have been busy changing our material laws instead. The National Legislation Program changed a lot of our legal regulations, but did not concentrate sufficiently on enforcement. With this situation, it is no wonder that little change is felt.

Formally, judges are monitored by the Judicial Commission, police are monitored by the National Police Commission (Komisi Polisi Nasional – “Kompolnas”), the attorney’s office is monitored by the Attorney’s Office Commission. However, not many changes have been seen. “I think that perhaps, the investments made by the State, especially in terms of the police. For example, the Kompolnas has extremely limited authority and cannot do much, while its original purpose was to improve the performance of law enforcement. I think this is all about law enforcement itself – not in the law enforcement system, but its personnel. Problems relating to our law enforcement are related to professionalism. Is there a guarantee that investigators will not be interfered with? How far are we sure that the investigators are professional and cannot be interfered with? What guarantee do we have that our public attorneys are not interfered with either? There are a lot of problems in the Jokowi era, as the Attorney General was selected from a political party. This would naturally rouse the people’s suspicion as they perceive political interest in this selection. Therefore, we need to note these things well in the future,” Agustinus said.

Mudzakir, Criminal Law Expert from the Islamic University of Indonesia, Yogyakarta, concludes that law enforcement in Jokowi’s era is choosy. “We started to notice this in the first year of rule. It became clearer from the second year to the fourth, and it has become obvious in the fifth year. In this final year, politics have become the basis for law enforcement. This is extremely dangerous for the legal system of Indonesia, because the police, judicial system, and attorney’s office as functions are mixed in with all sorts of power. Now it is too obvious that the basis used for making crucial decisions is political tendencies. This is unhealthy and contravenes the 1945 Constitution,” he said.

The Law as the Tool of Those in Power

In cases of hate speech like Ahmad Dani’s case, whether we like it or not Dhani is part of Prabowo-Sandi’s campaign team. In the case in Surabaya, Dhani, who was prosecuted then reacted towards the prosecution, was imprisoned; but the person persecuting him remains free. The substance of persecution is to limit a person’s freedom to move, and this freedom is guaranteed in our constitution. In this case, Dhani, whose freedom to meet and unite and express opinion was obstructed, was the one being punished.

The law stated that the person who feels that he is being insulted or otherwise wronged must be real or concrete. This is the consequence of the concept of “persona” in legal science. However, Dhani did not mention who exactly the person he means; he only made a general statement. In terms of legal concept and science, Dhani’s action does not qualify as a criminal action, but he was tried anyway.

Dhani was arrested and sentenced to 4 years of imprisonment by the District Court of South Jakarta. In our law, no arrest order must be made if the threat of imprisonment is 4 years. Yet the order was made. Even more unfortunately, Dhani was not immediately arrested when the court order was made, and the imprisonment was only ordered by the High Court after appeals.

“All in all, I agree with the conclusion that the law today is mostly used as an instrument to cut down political opponents,” Margarito said. It is very easy to take people to court because of cases of difference in opinion. This shows that the Law is being abused as a tool of the authorities. Jokowi should understand that the freedom to speak and to express oneself is a capital for living for the person. “Therefore, punishing a person who expresses his mind is the same as ending his life, because speaking freely is part of a person’s right, the same as his right to live,” Margarito said.

Chudry said that this kind of thing is very obvious in presidential campaigns. The Election Monitoring Agency (Badan Pengawas Pemilihan Umum – “Bawaslu”) stated that several regional heads in Central Java, starting from Governors to District Heads, have violated election laws, but the police did not follow up on the case. Later, a video showing a supporter of Presidential Candidate Number 01 was widely circulated, but not prosecuted. “This kind of thing raises questions about the police’s neutrality within the past 6 months,” he said.

Since Indonesia amended the 1945 Constitution in 2002, we have claimed to respect and honor human rights, including the rights to gather, unite, and express opinion – but not freedom without limit. The issue is the limit of freedom according to the Law. This is exactly what happened in the cases involving Ahmad Dani and Buni Yani. As everything is related to politics, the people ended up concluding that the law is strict towards opponents and soft towards allies.

The people submit complaints, which must be followed up by the police and the attorney’s office. However, the gates of justice are guarded by the courts or judges. Even though the police and attorneys bring cases to the court, it is judges who judge them. When we see the considerations made behind the judgment against Ahmad Dani and Buni Yani, we note that the judges only investigated from a judicial aspect, but did not consider the philosophical and sociological aspects of the issue. Judgments should be made not merely based on judicial basis for the sake of laws and regulations, but must also grant justice for both the victims and perpetrators of any crime. The Law contains three aspects that must be carefully considered when we are seeking to uphold the law and seek justice: judicial, philosophical, and sociological. “The philosophy is related to the freedom of expressing opinion, and the sociology is by checking whether the public considers it hate speech or not,” Chudry said.

Agustinus concludes that several cases of hate speech like that of Ahmad Dani and Buni Yani have many distortions. In Ahmad Dani’s case, an arrest order was made right after the first-level decision was made. This is not right. We must remain objective and not view law enforcement from a political interest angle.

Mudzakir stated that what Ahmad Dhani said is not qualified as a criminal action. “If you are going to sue for defamation on that basis, then many people would have been jailed by now. In fact, many more people in Surabaya would be jailed than people from other areas. Speaking rough is a tradition in Surabaya – for example, you might simply call your friends things like jancuk (four letter word), asu (dog), and other similar rough terms. Then there is the question, “Is this law enforcement or getting rid of the opposition? I agree that nowadays, there are more members of the opposition being prosecuted and more protection towards allies,” he said.

The article regulating insult is necessary, but there should be clear limitations. We don’t want to mistake a person expressing his or her aspirations as one who is making an insult. “This is what I’m worried about – that norms get limited by law and law enforcement officers. The cases of Buni Yani, Ahmad Dhani, and even Habib Rizieq, they’re not included in criminal law. Popularly this is known as “criminalization”. Essentially, it is not a crime, but it is criminalized. That is unfair,” Mudzakir said.

People become imprisoned because of a difference of opinion. This reduces the law to a tool of the authorities. “This is true. Firstly, it is a political tool, so it depends on our interpretation, the interpretation of authorities.” This is confusing. For example, a person burning a flag emblazoned with the tawheed (Islam’s most emphatic and solemn vow, i.e. that there is no God but Allah and that Muhammad is His prophet and messenger), but they are not punished for it. People get punished because they “bother public order”. This is odd, everything is being twisted vaguely,” Mudzakir said.

Loophole Regulations

The regulation concerning hate speech is a loophole regulation. Our current Government has no vision about the issue. There are no accurate and reliable evidence that shows that imprisonment can resolve all problems. Why shouldn’t we choose a better way in terms of justice, like resolving the issue peacefully and negotiating among people who are disputing? Why don’t we do that and consolidate our constitution from time to time, to make it better? Regulations about hate speech must exist, but they must be more specific in order not to be used to attack people unjustly. “We do not approve of insults, defamation, and other things. But if we allow the Law to stand as it is, we are getting nothing but disasters,” Margarito said.

Relating to the insults levelled by the Regent of Boyolali toward Presidential Candidate Prabowo, Margarito said that the nation is in need of finding a new leader to resolve the issue. “We can no longer expect much from the current Government to clean up our laws. The need to get our laws in order is so strong and inevitable, but we can do that only if there is a new leader,” he said. “There is nothing left for us to expect from Pak Jokowi in terms of the law. Let us assess everything honestly and be open in the effort to end this Government,” he said.

Chudry considers “hate speech” to be a loophole regulation, as it is highly relative. If we may take the note, chats in WhatsApp groups are even harsher. A too-strict interpretation of “hate speech” indirectly limits the freedom of people to hold an opinion. On the other hand, freedom of opinion does not mean everyone may use dirty words against each other. Such regulations must continue to exist, so that we can have harmony among our people. However, there must be clear measures on what is meant by hate speech. The regulation about hate speech itself must follow the developments in society, which is the sociological aspect.

In our current open and transparent atmosphere, we can differentiate between fast and slow processing of anything. As a contrasting example, the case involving the ladies in Karawang was handled swiftly, but the distribution of gifts is not processed. This causes the supporters of Presidential Candidate Pair 02 to be treated unjustly. The case of the Regent of Boyolali who compared Presidential Candidate 02 with animals was not politicized, but law enforcement did not act proportionally and professionally. “I suggest that Pak Jokowi instruct the police and the attorney’s office to enforce the law as is, not considering anything else. All violations of the law should be punished,” Chudry said.

Agustinus stated that loophole regulation is not just related to hate speech, but most people nowadays tend to keep silent in the face of “dangerous” regulations. It is true that hoaxes are dangerous for our country. We have relevant regulations that were created quite a long time ago, i.e. Law Number 1 of 1946. The situation then might be different from what it is now: nowadays, there are situations where something not serious but can cause serious impact in Indonesia. One of these is hoaxes. Law Number 1 of 1946 was then used to address the issue. “I think that is not entirely suitable, but then should we leave it alone at that? If yes, then would that be wise?” he said.

To repeat: the statement made by the Regent of Boyolali who compared Presidential Candidate Prabowo to an animal should have been reported to the police and legally prosecuted. The same thing occurred earlier with SBY: he was compared with a buffalo, and the statement was never prosecuted either. “I think that is wrong. Such statements should be prosecuted,” Agustinus said. “I would not say that nowadays, the law is used to attack one’s opponents. I think such goings-on should be prosecuted under the law. I suggest to Government Jokowi that we should ensure that law enforcement is free from anyone’s intervention, whether that of the Government or of public opinion, because nowadays people easily build opinion and (ab)use either the power of the masses or that of the authorities. If the authorities intervene with judges, with police officers, and attorneys, how will it ensure justice? So the issue is how to free our courts, police officers, and attorneys from intervention.

Mudzakir also calls such regulations relating to hate speech and defamation “loophole regulations”. “I have been buzzing out this phrase for a long time, this type of careless interpretation. But apparently it was not used. I certainly hope that there will be special task forces created to review these regulations,” he said.

The words stated by the Regent of Boyolali towards Prabowo were extremely rude – they were an insult to his dignity, honor, and reputation. Ahmad Dhani merely said that “People who support blasphemers should be spat at”. “This is much more neutral than calling a person a dog (asu), because the name was mentioned directly (by the Regent). Ahmad Dhani did not mention anyone. He was not specifically referring to Ahok, but to those who support blasphemy. This makes for a bad example, because that is discriminative,” Mudzakir said.

The unfairness of legal processes specifically occurs against the supporters of Presidential Candidate Number 02. “In other words, the Number 02 team submitted many reports, but they do not do anything. But in the criminal case of Ratna Sarumpaet, wherein she made an untrue statement, retracted it, and then admitted that she lied, what’s to be punished then? In terms of untrue statements, just about every official recently lie a lot, how come they are not arrested like Sarumpaet was? An official playing around with politics stakes his or her reputation. They play around just for short-term interests. They don’t remember that their responsibility in the hereafter would be too heavy,” Mudzakir said. He ended the interview by emphasizing that the use of law as a tool to further the interests of authorities is a direct violation of the 1945 Constitution.
(Dessy Aipipidely, Ekawati)