The Asian Forum for Human Rights and Development (FORUM-ASIA) expresses concern over the ongoing criminal proceedings against Fatia Maulidiyanti and Haris Azhar and its implications to human rights and civic space in Indonesia. FORUM-ASIA has submitted an amicus brief to the East Jakarta District Court for its consideration in the application of defamation laws. The brief strongly recommends the court to apply defamation laws, which serve as the legal basis in the criminal case against Fatia and Haris, particularly Article 310 and 311 of the Indonesian Criminal Code, Article 27 paragraph (3) in conjunction with Article 45 paragraph (3) of the Information and Electronic Transaction Law – in a manner that conforms with international human rights standards.
Permissible restrictions on the right to freedom of expression based on defamation must satisfy the strict requirement as stipulated under the Article 19 of the International Covenant on Civil and Political Rights (ICCPR), namely: legality, legitimate aim, necessity and proportionality. It should not be used to stifle open public debate on matters of general or specific interest. Furthermore, the UN Special Rapporteur on Freedom of Opinion and Expression asserts that reporting on human rights, government activities and corruption falls under the types of expression that should never be subjected to restriction and criminalization. Fatia and Haris’s commentary on the alleged involvement of Luhut Binsar Panjaitan who is Indonesia’s Coordinating Minister for Maritime Affairs and Investment in mining operations in Intan Jaya Regency should not render them criminally liable based on defamation laws that are used to protect the reputation of Luhut.
The freedom to make commentaries to human rights violations and raise criticisms against the government and/or public officials is a reflection of a thriving civic space that enables the people to engage in public discourse and influence policymaking through public debate. In his capacity as a high level public official, Luhut is expected to be receptive to public criticisms particularly from human rights defenders whose duty is to highlight ongoing and potential human rights violations.
Furthermore, taking into account Fatia and Haris’ status as human rights defenders, whose track record shows continued good faith in advocating for human rights concerns, and the fact that their commentaries pertain to public interest, the District Court must recognize that their actions in drawing attention to alleged human rights violations are protected under the ICCPR, of which Indonesia as a state party, should not be construed as bearing malicious intent.
FORUM ASIA therefore calls on the presiding Judge of East Jakarta District Court to interpret the defamation laws in alignment with international human rights law and standards. Any prosecution of defamation actions, or any constraints on the right to freedom of expression must strictly follow the principles of legality, necessity, and proportionality, and this should be proven beyond a reasonable doubt.
