Jokowi Penal Code: Draft law threatens press freedom in Indonesia
Serious concerns about threats to the independence and freedom of the press by the Indonesian Penal Code Review Project (RKUHP) continue to be expressed, despite recent attempts by President Jokowi to schedule more consultations with civil society and press freedom groups.
RKUHP’s plan, first introduced in 2019, sparked massive protests and was widely condemned by press freedom and human rights groups. Facing fierce opposition, he was pulled to resurface in recent weeks.
Civil society groups in Indonesia have been advocating for the repeal of many objectionable provisions of the current draft since 2019, without success. Despite assurances of consultation, the government appears determined to pass the bill.
The pause did not mean a questioning on the part of the government. On July 6, 2022, the government submitted a new revised Penal Code Bill (RUU KUHP) to the Indonesian House of Representatives (DPR) which represented very little progress. The new bill again encountered strong opposition. But despite this, the DPR and the government have said they will fast-track its ratification without making substantial changes to the 2019 draft.
The relative haste with which this latest project was reintroduced has been condemned by civil society groups as evidence of the government’s lack of commitment to maintaining transparency and inclusiveness for all stakeholders, including civil society, in order to consult meaningfully and express their concerns. A broad coalition of civil society groups condemned this as clearly undermining the “fundamental democratic principles that Indonesia has always claimed from the world it represents”.
Many aspects of the draft have drawn criticism, but key provisions still pose real threats to press freedom. According to the highly respected Press Council of Indonesia, there remain 19 articles in the RKUHP that could criminalize journalistic work. These 19 articles also contradict the spirit of Law No. 40 of 1999 on the press, according to the Council.
The President of the Press Council, Azyumardi Azra, during a special press conference on Friday July 15 (15/7/2022), asked that the offending articles be removed from the project “because they have the potential to threaten freedom of press “.
The articles concerned cover a wide range of issues that undermine freedom of the press. There are now proposals for crimes against “state ideology” (article 188); Crimes of insulting the honor or dignity of the president and vice-president (articles 218, 219, 220); an offense of disseminating or disseminating false news or notifications (sections 263 and 264); the criminalization of acts of “humiliation” by the government; the offense of disseminating or disseminating “false news or notifications” (sections 263 and 264); Offenses against public authorities and state institutions (Articles 351 and 352); and the crime of defamation (article 440).
In the RKUHP, the media will also be prohibited from disseminating information that has not been verified. If the news does not ‘match the facts’, journalists and media can be subject to Article 263 and Article 264. Sanctions for journalists and media are also ‘tiered’ based on impact news happening in the community. This is a curious requirement that raises the prospect of significant abuse.
Lawyers called the government-imposed RKUHP project stuffed with “rubber” items. This is a term applied to the ITE Act almost since its inception in 2008, when the AJI, IFJ and numerous press freedom groups warned of its potential to chill press freedom. . No clear legal standard is set out in the law, which can only mean that there are many possibilities for abuse.
Critics have pointed out that all of these objectionable provisions are drafted vaguely and broadly, giving the government and government agencies almost unlimited discretion that will lead to selective prosecutions and severely restrict freedom of speech and expression in the country.
Critics argue that if passed, the law will create a significant chilling effect on those exercising their rights while simultaneously creating a culture of self-censorship and a climate of fear.
A broad coalition of civil society groups (the “Safenet coalition”) claims that if parliament passes the current draft, it will represent a significant breach of Indonesia’s human rights obligations, particularly under of the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a party. The Covenant recognizes that the limitation of fundamental freedoms should only take place when strictly necessary and in a proportionate manner. Such vague and overly general provisions are clearly inconsistent with the ICCPR.
Critics point out that there are no public interest defenses to any of these offences.
The new law also does nothing to address the most serious concerns about real and significant threats against journalists in this new era of cyber-defamation, notable for the widespread cyber-targeting of journalists, academics, activists and students, which have faced torrents of cyber attacks.
Human rights threats now take on a relatively new form and are carried out through various digital attacks, including hacking, doxxing (publishing an individual’s personal data with malicious intent), cyberbullying, hacking and espionage. These attacks have been directed against human rights defenders, indigenous leaders, environmental activists, anti-corruption activists and women’s groups.
In the 2020 Global Cybersecurity Index report, Indonesia was ranked 24th out of 182 countries. It is considered far from safe. Nothing in the bill addresses these concerns.
Ministerial Regulation 5 Threatens to Restrict Press and Internet Freedom
In May 2021, an international coalition of 25 civil society organizations filed an open letter condemning this regulation and urging the government to repeal it. An online petition protesting the settlement has been signed by more than 11,000 internet users. On July 22, 2022, members of the Coalition staged a protest in front of the ministry’s office.
The coalition has identified a number of key articles of the regulations that threaten press freedom.
Article 9 (points 3 and 4) firmly prohibits private ESPs from publishing content containing prohibited information, including that which violates laws, causes public disorder and disturbs public order.
The terms “causing public disorder” and “disturbing public order” are “rubber” articles. They can be interpreted to target criticism of public authorities and the police.
The “rubber” article will allow authorities to target critical content, for example, media coverage of crimes or content about human rights abuses in Papua. In other words, regulation can easily be deployed as a tool for authorities to abuse their power.
Article 14 allows a citizen, civil society groups, public bodies or law enforcement agencies to request the blocking of access to information likely to cause public disorder and disturb the public. ‘public order.
Sections 21 and 36 require operators of electronic systems to provide access to government departments, state agencies, and law enforcement agencies to enter their electronic data and systems for the purposes of supervision or ” assistance” to law enforcement.
Critics warn that this access can be misused by the government to intimidate the media. Granting access to personal data strongly violates the privacy rights of the public, including journalists.
Criminal defamation and ITE law
Despite constant criticism, the Indonesian government has done very little to reform draconian defamation laws, including the Electronic Information and Transactions Law No. 19 of 2016 (“the ITE Law”). Critics have regularly pointed to the threats to media freedom posed by the ITE law. Its so-called “rubber goods” are the antithesis of well-crafted legal provisions that offer protections and legal certainty to citizens.
The most recent and stark example of the dangers of the ITE law came in March 2022, when two Indonesian environmental activists, Haris Azhar and Fatia Maulidiyanti, were named “suspects” in a defamation case.
The defamation suit was filed by the Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan, arguably the most senior and powerful minister in Jokowi’s cabinet. He complained about a YouTube video in which the two activists discussed alleged links between mining companies and military operations in Papua. They claimed that Luhut was involved as a shareholder in one of the companies operating in the area.
According to current indications, the government will continue with the development of the draft criminal code (RKUHP), despite persistent opposition. Perhaps the critics will now have to focus on highlighting the threat to Indonesian press freedom in November, when Indonesia chairs the G20 conference in Bali.
Jim Nolan is the International Federation of Journalists’ pro bono legal adviser for Asia-Pacific and a regular legal observer on key cases in the region.