The Coalition of Civil Society Organizations (ELSAM, KontraS, ICJR, SafeNet, PSHK, LBH Pers, LBH Jakarta, YLBHI, ICT Watch, ICW, Pil-Net, PBHI, ILRC, Arus Pelangi, MAPPI, LeiP, ILR ) condemns the actions of Yogyakarta Region Police, who has detained Florence Sihombing, a netizen and Notary student in Yogyakarta, on 29 August 2014 at 2 p.m.
The arrest and detaining of Florence Sihombing is the result of her posting in her Path social media account on 27 August 2014. The content of her posting has caused anger among the society of Yogyakarta, who did not take lightly her harsh words, which represent her reaction to an initial incident at a gas station near Lempuyangan. The detaining of Florence Sihombing was done when she went to the Yogyakarta Region Police office in response to a summons for clarification; however, the session for clarification turned into an investigation process and writing of police investigation reports as both witness and suspect. Although Florence and her lawyer decided not to sign the police investigation report, she was detained by the police. We consider the action of Yogyakarta Region Police as being excessive, as Florence Sihombing has previously declared an apology through her personal social media account, after receiving harsh criticism from various parties.
The Coalition of Civil Society Organizations also considered that the detaining of Florence Sihombing is violating the Criminal Procedural Law and the procedures for detaining in accordance to Electronic Information and Transaction Law. This consideration is based on the followings:
- Detaining (regulated in Article 20 (1) jo. Article 21 of the Criminal Procedural Law) is inherently intended for investigation interests, based on the premise that a suspect or defendant is strongly alleged to have committed a criminal act, based on adequate evidence, in a condition that raises the concern that there is a possibility that the defendant will escape, commit the act again and obliterate evidence. Detaining can only be applied in cases of criminal acts threatened with a jail sentence of 5 years or more. The detaining of Florence is only based on the reasoning that she is threatened with a jail sentence of more than 5 years, and the police disregarded the absence of a condition that raises the concern that there is a possibility that the defendant will escape, commit the act again and obliterate evidence. In cases of defamation, in which Florence has in good act stated an apology, fulfilled the police summons and given clarification, there should be no condition that demands the detaining, as the background, position case and situation of Florence was clear. Due to the absence of clear indicators of the need of detaining, the detaining should not have occurred.
- In the case of Florence, being threatened with Electronic Information and Transaction Law, it should be noted that according to Article 43 (6) of the Law, in case of arrests and detaining, the investigator through public prosecutor, is obliged to request a stipulation from the Head of the State Court in a period of twenty-four hours.
The performance of the Head of the Yogyakarta State Court is also worth considering. The Coalition considers that a stipulation from the State Court should be a test for the appropriateness or else of a detaining, and that in the case of Florence, with the clear background of the suspect, there should have been no detaining, and the Head of the Yogyakarta State Court should not have released the stipulation. The Coalition also entertained the possibility that the police did not follow the procedure as stipulated in Article 43 (6) of Electronic Information and Transaction Law, as in practice, the police has always detained suspects without any stipulation from the Head of the State Court in cases pertaining to the Electronic Information and Transaction Law.
Other than the inappropriate and irregular detaining procedure by Yogyakarta Region Police investigators, it is also necessary to evaluate the articles applied in this case, especially Articles 27 (3) and 28 (2) of the Electronic Information and Transaction Law. These articles have caused controversy since their inception, due to their unclear, ambiguous and flexible wording, and overcriminalisation. These are in opposition to the principles of lex certa and lex stricta, as elements of rule of law. Thus, the justice should have avoided the application of these articles.
In the case of Florence, the elements of these articles are also unfulfilled. Upon referring to the construction of Article 27 (3), a question arises: what kind of defamation harms the interest of the complainant? In addition, when referring to Article 28 (2), the main element to be fulfilled is spreading of hatred based on ethnicity, religion, race and group. The city of Yogyakarta is not part of the categories. Thus, it is clear that not only the detaining is inappropriate, but accusing Florence and putting her as a suspect of violating criminal law is also inappropriate and baseless.
The case of Florence adds to the poor practice of handling defamation cases using Electronic Information and Transaction Law by the legal apparatus. Other than creating fear in society, this misuse of law has, and will, restrain freedom of expression. Further, such practices show the excessive authority to detain persons, without balancing control and accountability. This also shows unprofessional conduct in part of the Yogyakarta Region Police in the forced detaining, because it is inappropriate to the scale and procedures based on the Criminal Procedural Code and other legislations. The police should have positioned itself to mediate the issue, instead of exacerbating the problem.
- Therefore, the Coalition strongly urges:
The defamation case involving Florence, using Electronic Information and Transaction Law, has to be ceased, because it is baseless, and that the police should give emphasis to peacemaking instead of criminalising
- Immediately release Florence from custody, because the detaining is baseless and violating the Indonesian Criminal Procedural Law
- Demands the Head of Police, Profession and Security Division, National Police Commissioner and other institutions related to police reform to respond to the issue of unprofessional conduct within the police
- Demands the government to revise Electronic Information and Transaction Law and the Criminal Procedural Code