Silencing the Criticism with Criminal Defamation to Spread the Fear (Chilling Effect)

Just before the execution of Ferry Budiman, Haris Azhar, – Human Rights activist of KONTRAS –posted a statement in social medial regarding the involvement of numbers of government apparatus, including member of the National Narcotics Agency (BNN), The  Indonesian National Police (Polri), The Indonesian National  Armed Forces (TNI), in the drugs trafficking network. The post made by Haris Azhar was based on Freddy Budiman’s verbal statement, and it triggered controversy due to it showed how damaged the law enforcement which led to the arbitrary punishment. To respond the news, the National Police’s Criminal Investigation Department (Bareskrim) planned to summon Haris Azhar, based on the report of the Police, TNI, BNN, for the violation of Article 27 Paragraph (3) of the Law No. 11/2008 on Electronic Information and Transaction (ITE).

The response on Haris Azhar’s action indeed showed an oppressive mentality of government institution, the mentality which is the inheritance of New Order regime. This also showed the unfinished reformation of institution of which it has the tendency to do the silencing act on numbers of public criticism by benefiting formal legal structure. Crime report on Haris Azhar of insult / defamation was also legally wrong. The law of defamation is defined as a law which is meant to protect people from wrong statement or fact that can destroy their reputation. The main function of the defamation law is to maintain and protect reputation, dignity, as well as someone’s privacy, not to protect an institution, an agency, or a region. Moreover, defamation law is also considered unconstitutional if it is intended to protect someone’s feeling.

In addition to that, UN Human Rights Council, through Resolution 12 / 16, has mentioned that the crime of defamation, as a practice to restrict freedom of delivering opinion and expression, is supposed to never be applied on the government policy discussion and political debate, including criticism on government performance and disclosure of corruption within the government. It is also mentioned in The 1996 Johannesburg Principle on National Security that the restriction on human rights is made in order to protect one’s reputation, and can’t be used to protect state or state officials from public criticism and opinion. It is also based on the guarantee of freedom, of which everyone has the right to give opinion without interference from others, in Article 19 Paragraph (1) of International Covenant on Civil and Political Rights which has been ratified by Indonesia in 2005.

The response of the above institutions which has the tendencies to be repressive on the criticism was a betrayal toward international as well as constitutional obligation to protect each form of expression and opinion. In the beginning of last July, UN recently announced Declaration Statement (A/HRC/32/L.20) which emphasizes that the promotion, protection, and enjoyment of freedom of expression online is a part of basic human rights, including the expression delivered online through social media. This protection is made because freedom of expression online is intrinsically considered able to maintain the participation of people to achieve the development and enjoyment of human rights in every community. The above crime report was obviously a practice of fear spreading (chilling effect) which potentially silences the public criticism on the improvement of government performance.

Institute of Policy Research and Advocacy (ELSAM) and Academic Network for Freedom of Expression eventually evaluated that the response showed by the above institutions were merely a banality on the nature of law enforcement instead of functionalize the law as it supposes to be in order to achieve the legal ideals. Based on that consideration, we regret that kind of actions that ignore the principles of human rights as well as The 1945 Constitution. Therefore, we encouraged:

1. The needs of those mentioned above three institutions (Police, TNI, BNN) to reconsider the reports of insult / defamation on Haris Azhar;
2. The information revelation by Haris Azhar should be the new entrance to continue law enforcement reformation, as well as complete the reformation of those three institutions;
3. President Joko Widodo, as the highest leader of those three institutions, to give strict instructions about the reformation of institution law enforcement as an effort to restore public trust, which is one of the promise mentioned in Nawacita;
4. The needs to re-evaluate the legislation framework, particularly the Law No. 11 / 2008 on Information and Electronic Transaction, which is often be used to silence the public criticism as well as to negate public participation on government performance, thus it threats the protection on the freedom of opinion and expression.

Jakarta, 8 August 2016