On Monday, January 8, 2024, East Jakarta District Court held a verdict hearing of a case Number 202/Pid.Sus/2023/PN Jkt.Tim about an alleged defamation addressed to Coordinating Minister for Maritime and Investment Affairs, Luhut Binsar Panjaitan, by the defendants Fatia Maulidiyanti and Haris Azhar. The Panel of Judges for this case weighs in the facts presented in the trials for 9 months since the first trial on April 3, 2023, that Fatia and Haris do not meet the articles indicted to them by the Public Prosecutor and acquits Fatia and Haris. Civil society cheers on this decision, especially human rights activists for freedom of expression.
Judges are inherently expected to produce considerably well-thought decisions in protecting citizen’s rights. However, LeIP views that the Panel of Judges consisting of Cokorda Gede Arthana, Muhammad Djohar Arifin, and Agam Syarief Baharudin deserve to be appreciated for their considerations in including human rights principles of freedom of expression in their decision, though not explicitly. This decision can be potentially an outlook that Indonesian judges are able to implement human rights principles in their decisions amidst a scarce consideration towards the human rights principles in court decisions to date. Several good considerations in the acquittal of Fatia and Haris, which are:
- In considering an element of “containing insulting and/or defamatory content(s),” the Panel of Judges points out that:
“The word Lord placed before the Witness LBP’s name has been often embedded by online media and has become a notaire when people call the name LBP [with the word ‘Lord’], even in daily conversations, but it does not insult Witness LBP.”
This consideration has implicitly pointed out that the Panel of Judges aims to protect freedom of expression exercised by Fatia and Haris from a restriction imposed without a legitimate aim, according to human rights principles [see ICCPR, Article 19 (3) jo. Law No. 12/2005]. The Panel of Judges also challenges the proportionality of legal proceedings faced by Fatia and Haris with other parties who do not face any legal proceedings of the same act, that is to embed “Lord” before the Witness LBP’s name. In other words, if the legal proceedings addressed to Fatia and Haris are done with legitimate aims, other parties who previously did the same thing are worth as intense legal proceedings as Fatia and Haris. As a matter of fact, they are not;
- Besides, the Panel of Judges considers that the element is not met because “the mentioning of the word Lord towards Witness LBP is not intended personally to Witness LBP, but is intended to refer to LBP’s position as a coordinating minister in the President Jokowi Cabinet.”
This has been based on human rights principles which basically mention that public officials are legitimate objects to be criticized in political discourse, therefore expressions which are perceived as insulting a public office are inappropriate to be punished [ICCPR General Comments No. 34, Paragraph 38]. Moreover, this consideration is consistent with jurisprudence from regional human rights courts in other countries, which by point state that public officials must have high tolerance towards public expressions and restrictions imposed to freedom of expression must be loosened up when it comes to political discourse related to public figures or public officials [see European Human Rights Court Decision, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina; Inter-American Human Rights Court Decision, Herrera Ulloa v. Costa Rica; African Human Rights Court Decision, Lohe Issa Konate v. Burkina Faso];
- The Panel of Judges considers that “the phrase Lord on LBP is not intended as an insult or defamation”.
This consideration shows that the Panel of Judges has successfully interpreted the defamation articles based on Memorie van Toelichting (MvT) of the Criminal Code, which explains that the main requirement of defamation is the existence of animus injuriandi, which is an intention to overthrow someone’s dignity (eergevoel te krenken) or discredit someone’s dignity in the eyes of others [LeIP, Protecting Expression: Criminal and Human Rights Law Analysis of Court Judgements in Indonesia, p. 100]. With that being said, without the intention or aim to insult, one cannot be punished or convicted because of defamation. This particular provision has been regulated in The Joint Decree of the Law of Information and Electronic Transactions, which explains that the focus of the sentencing based on the Article 27 (3) of Law of Information and Electronic Transactions is not lied upon the victim’s feeling, but the perpetrator’s act that is done intentionally (dolus) [see Attachment of The Joint Decree of the Law of Information and Electronic Transactions No. 3 letter g];
- Lastly, in considering the unproven indictment, the Panel of Judges by point states that:
“Statement about LBP’s involvement in a mining in Papua is something undeniable because it has been proven that PT Toba Comdel Mandiri as a subsidiary of PT Toba Sejahtera whose 99% of its share is owned by Witness LBP is indeed a mining business on the land of Papua” and “is not considered as an insult and/or defamation category because what was stated on the podcast is an examination, comment, analysis, opinion, and evaluation from a research report done by civil society coalition.”
This consideration has clearly showed that the Panel of Judges has successfully implemented The Joint Decree of the Law of Information and Electronic Transactions well, which has been referred to as legal basis by the Judges in their decision, which by point states that an expression cannot be punished or convicted if it is an examination, opinion, evaluation or a fact [see The Joint Decree of the Law of Information and Electronic Transactions No. 3 letter c]. This is consistent with international human rights law standards wherein one of the things that strengthens the defendant’s plea in cases related to freedom of expression is the defense of truth [see ICCPR General Comment No. 34, Paragraph 47]. Furthermore, this consideration is consistent with jurisprudence from regional human rights courts in other countries, which by point state that the delivery of an opinion based on sufficient factual ground (in the case of Fatia and Haris is civil society’s research) is a legitimate expression and cannot be restricted, including by imposing criminal convictions [see European Human Rights Court Decision GRA Stiftung Gegen Rassismus und Antisemitismus v. Switzerland and Tešić v. Serbia; Inter-American Human Rights Court Decision, Herrera Ulloa v. Costa Rica; African Human Rights Court Decision, Ingabire Victoire Umuhoza v. Rwanda].
Based on those descriptions, LeIP deduces that Court Decision Number 202/Pid.Sus/2023/PN Jkt.Tim is an optimistic outlook that needs to be nurtured in advancing the implementation of human rights principles by courts in Indonesia. This decision has been consistent with a speech by the Indonesian Chief Justice in a book launch event entitled “Metodologi Hukum Hak Asasi Manusia: Nalar, Praktik, dan Tantangannya dalam Sistem Peradilan di Indonesia” (Human Rights as Legal Methodology: Reasoning, Practice, and Challenges in the Indonesian Judiciary System) which was held by PUSHAM UII and Norwegian Center for Human Rights (NCHR), which by point requests judges to implement human rights principles in adjudicating cases. Therefore, LeIP urges things below:
- Urging various parties to take advantage of Court Decision Number 202/Pid.Sus/2023/PN Jkt.Tim as a reference in discussions, examinations, and materials for related cases of freedom of expression in Indonesia;
- Urging judges in Indonesia to always produce decisions which are in line with human rights principles;
- Considering the situation that the Prosecutor has filed a cassation appeal on the Court Decision Number 202/Pid.Sus/2023/PN Jkt.Tim, LeIP urges the Panel of Judges appointed by the Supreme Court to adjudicate this case on the cassation level to pay attention to well-thought considerations produced by the Panel of Judges in the Court Decision Number 202/Pid.Sus/2023/PN Jkt.Tim.
Jakarta, January 9, 2024
Indonesian Institute for Independent Judiciary (LeIP)
Shevierra Danmadiyah (081236325338)
Mentari Anjhanie Ramadhianty (085654169311)
Muhammad Tanziel Aziezi (082260015253)