In Indonesia a person may be imprisoned for insult despite telling the truth.
Independent Observer
IO – On the 28th of November television host and environmental activist, Irma Hutabarat was questioned by the Indonesian cyber police with regard to a complaint brought against her by Prof Romli Atmasasmita under article 27 paragraph 3 and article 45 of Indonesian Cyber Law number 11 of 2008 for defaming and insulting the professor. The crime carries a maximum sentence of six years imprisonment and/or a fine of up to Rp 1 billion.
On the 20th of November 2017 Hutabarat heard on the news that the Ikatan Doktor Indonesia (IDI) or Indonesian Doctor’s Association had declared former Golkar leader and head of the DPR or Peoples Representative Council, Setya Novanto medically fit to stand trial despite his own doctor and lawyer’s claims that he was not well enough to do so, after an alleged road accident. Setya Novanto stood accused of corruption by the Komisi Pemberantasan Korupsi or Indonesian Corruption Eradication Commision. During a press conference his lawyer Fredrich Yunadi said that Setya Novanto had a lump as large as a bakpao (type of bun) on his head as a result of the accident. IDI’s statement triggered an impassioned Facebook article by Irma Hutabarat entitled “When a Bun is Imprisoned by the Corruption Eradication Commission, I am reminded of the Creation of the Commission” where she cried out her frustration against liars which was followed by her recollections of the creation of the Corruption Eradication Commission and Prof Romli Atmasamita’s role in the process. Her piece in Facebook was later published in the police magazine Bhayangkara.
Prof Romli Atmasasmita who is a professor of international law at Padjadjaran University helped draft Indonesia’s Anti-Corruption Law of 1999 as well as the Law of 2002 Establishing the Corruption Eradication Commission. He himself was accused of being involved in the administrative system of corporate legal entities case which involved corruption in the registration of legal entities online and was found guilty by both the district court and court of appeals although later he was absolved by the Supreme Court.
Irma Hutabarat who is a well-known activist currently involved in helping to clean up rivers on Java with the Indonesian military, was also involved in the establishment of the Corruption Eradication Commission after the riots that helped bring down the government in 1998.
After the fall of the Suharto government, the foremost demand of the people of Indonesia was the eradication of KKN or corruption, collusion and nepotism, however trust in the police, the prosecutor’s office and the courts was at an all-time low so the MPR or People’s Consultative Assembly responded by issuing MPR Decree no 1 of 1998 establishing the creation of a corruption eradication commission. In 1998 the government of Indonesia was facing severe economic problems and did not have the funds to establish the Commission. Consequently, between 2000 and 2001 the Asian Development Bank provided a grant to do so. It also assisted in the creation of both a national and an international team to help draft the Anti-Corruption Law as well as the Corruption Eradication Commission Law. Both Prof Romli Atmasasmita and Irma Hutabarat were members of the national team.
Prof Romli Atasasmita has brought a complaint to the cyber police accusing Hutabarat of defamation and insult in her Facebook article based on Indonesia’s Cyber Law. The World Bank Institute has conducted research about the legal environment in different countries. In 2010 it published a report entitled “The Right To Tell: the Role of Mass Media in Economic Development” which covers freedom of speech in different countries. According to this report Indonesia has one of the worst defamation laws in the world. This is because although most countries have a defamation law, freedom of speech and democracy are preserved because the accused can appeal to the area’s regional human rights court. Such a court exists not only in Europe and Latin America but also in Africa. The Asia Pacific region is the only area which does not have such a court other than the United States but the U.S. has its Frist Amendment to protect its citizen’s freedom of speech.
Furthermore, in other countries defamation is not a crime and the burden of proof is not on the defendant as it is in Indonesia. Also, under Indonesia’s Cyber Law the truth is no defence. This is because the law covers both defamation and insult.
Senior Tempo journalist and political activist Bambang Harymurti is of the view that defamation articles should not be in the Cyber Law which was in fact created to protect internet consumers. He says, “I do not believe we need articles 27 and 45 of the Cyber Law regulating defamation for that is already covered in the Indonesian Criminal Code. At the time they drafted the Cyber Law Bill I was deputy head of the Press Council. They sent us a copy to review but in the draft were no defamation articles. It only contained cyber material and so we returned the bill saying that its contents were outside the scope of our responsibilities which is to protect the freedom of the press. This is why we did not bother to monitor the bill as it went through parliament. As luck would have it at the time someone created a website using then President Susilo Bambang Yudhoyono’s name. Roy Suryo, a parliamentarian from the Democrats then introduced articles 27 and 45 into the Cyber Law.”
Bambang Harymurti would like to see Irma Hutabarat bring articles 27 and 45 of the Cyber Law for review to the Indonesian Constitutional Court. He says they contravene the freedom of speech guaranteed under article 28 of the Indonesian Constitution because they are not just a defence against lies but also against insult. A person may be telling the truth but if the way they frame their words are deemed insulting they may be given a prison sentence of up to six years under articles 27 and 45 of the Cyber Law. This is a threat to freedom of the press as it makes it too easy to curtail freedom of the press by invoking the defamation articles of the Cyber Law.
When asked her opinion about articles 27 and 45 of the Cyber Law Irma Hutabarat asks, “How can you punish someone for telling the truth? Government officials are not perfect and freedom of speech is how we preserve the sanctity of public office. We are in danger when the essence of telling the truth is not important any longer. Should a person be polite about corruption or paedophilia for example? The public has a right to information and if I have to, I am prepared to take articles 27 and 45 of the Cyber Law all the way to the Constitutional Court for review.