An example from Indonesia’s new Article of libel and defamation

In the essence of practicing democracy, a fundamental understanding is that it provides a safe space for both criticism and self-critique, which is essential for maintaining a system of checks and balances both horizontally and vertically. Criticism ideally arises as part of a causality chain, where ‘A’ causes ‘B’ and is met with ‘C.’ Constructive criticism signifies a healthy interaction between the government and its people. However, it’s not surprising when theory and practice don’t align, as is the case in Indonesia. Despite being considered a democratic country, recent legal changes have raised questions about the state of democracy in Indonesia.

The Indonesian legislative body has recently passed Articles 240-241 as part of the revised Indonesian Penal Code.^[1] These articles regulate fines and punishments for individuals who ‘insult’ the Indonesian Government and its institutions, including the President, the People’s Consultative Assembly (MPR), and the House of Representatives (DPR). This raises concerns about the potential weakening of democracy when legitimate power is used to restrict criticism.

Further analysis suggests that what the Indonesian government is attempting may be a symptom of ‘stealth authoritarianism.’ In simple terms, stealth authoritarianism is the use of laws and government institutions to curtail people’s freedom to express criticism towards the government (Varol, 2015). In this case, reservations arise on two fronts. First, the nature of these articles is fundamentally flawed in a democratic context. The government’s actions indicate an institutionalized self-protection strategy through its power. These articles have the potential to stifle people’s ability to criticize the government’s performance.

Second, since the enforcement of these articles, they have triggered chaos among political partisans, particularly among President Jokowi’s supporters. Technically, individuals accused in libel cases can only be prosecuted if the lawsuit is filed by the ‘victim’ (Antragsdelikt). However, complaints registered with the police have been initiated by current regime supporters rather than the alleged ‘victims’ themselves.

These libel and defamation lawsuits have become a strict surveillance system and are widely condemned by various actors, from academics to civil society organizations (CSOs). These articles are also seen as a threat to human rights, as they constrain and criminalize freedom of speech. The list of activists facing libel and defamation cases is growing, and concerns have also arisen about the potential ‘domino effect’ as these articles are enforced.

This impact extends to human rights activists, who are now facing more challenges in their work. They investigate, defend, and advocate for various issues, often in opposition to the government’s stance. Media outlets are also facing similar challenges. Issues related to the Indonesian government are strictly censored, forcing the media to take sides instead of serving as a neutral platform for information and education. Moreover, international perspectives are also commenting on the authoritarianism and limitations on freedom of speech.

Articles 240-241 of the Indonesian Penal Code are not the sole instruments for government self-protection. The MD3 Law (Law Number 17 of 2014 on MPR, DPR, DPRD, and DPD)^[2] provided immunity to members of these four institutions from prosecution before the court. This legal reasoning appears incoherent. Romanticizing the work of these institutions should not result in a lack of space for constructive criticism. The libel and defamation articles should have been designed to protect public order rather than the government. The government should be able to respond to criticism without resorting to criminal lawsuits. Criminalizing criticism through libel lawsuits is subjective and baseless (Pasal/Hukum karet),^[3] reflecting the government’s inability to respond considerately to criticism.

^[1]Indonesia revised its Penal Code on 23 January 2023 after a long-awaited initiative. The previous Penal Code was greatly influenced by the Dutch legacy during the colonial era.

^[2]DPRD (Regional People’s Representative Assembly), DPD (Regional Representative Council).

^[3]In Indonesia, a baseless law or article can also be referred to as ‘pasal/hukum karet‘ (rubber law/article).

Reference 

Varol, Ozan. 2015.  “Stealth Authoritarianism.” Iowa Law Review 100(4): pp.1673-1742

Picture source: https://www.thejakartapost.com/opinion/2022/12/05/punitive-legal-code.html