On April 4, 2024, a panel of judges at the Jepara District Court read out its verdict over case No. 14/Pid.Sus/2024/PN.Jpa in which Daniel Tangkilisan sat as the defendant. The Jepara District Court decided that Daniel is guilty of committing crime described as “disseminating information aimed at inflicting hatred or hostility towards certain individuals and/or community group based on ethnicity, religion, race and intergroup”, as regulated in Article 28 (2) of the Law on Electronic Information and Transactions (EIT Law). The panel of judges considers that Daniel’s comments on his Facebook account in which he wrote the phrase “shrimp brain people” had inflicted feelings of hatred among some members of community in Kemujan Village and Karimunjawa Village, which then gave rise to pros-and-cons, so that the elements of the said EIT Law article is deemed to have been fulfilled.
LeIP views that the Jepara District Court’s decision is incorrect in its application of the law. LeIP considers that there are at least 2 (two) points which show the panel of judges’ error in the decision, namely: 1) in relation to the use of provision which is most favourable to the defendant’s interest after the second amendment to the EIT Law; and 2) regarding analysis over the element of “deliberately and without authority disseminating information aimed at inflicting hatred or hostility towards certain individuals and/or community group based on ethnicity, religion, race and intergroup”.
First, it is important to note that the EIT Law underwent second amendment amidst the legal process against Daniel. The revisions include, among others, removal of the “intergroup” element in Article 28 (2) of the EIT Law (which was used against Daniel) and inclusion of new elements in the article which have clearer boundaries, such as “nationality”, “ethnicity”, “skin colour”, and other. With the removal of the “intergroup” element, it is clear that Article 28 (2) of the EIT Law after the amendment should be the most favourable provision to be used against Daniel. In this regard, there is Article 1 (2) of the Criminal Code which provides that in case there is a change in legislation after a criminal act has committed, then the most favourable provision for the defendant shall be applied. Hence, the court should have applied the formulation of Article 28 (2) of the EIT Law which no longer contains the “intergroup” element in Daniel’s case.
Unfortunately, in sentencing Daniel, the court still used the formulation of Article 28 (2) of the EIT Law before the second amendment. The panel of judges mentions in its verdict that it could not be determined which provision is most favourable to the defendant because there were no significant changes made to Article 28 (2) of the EIT Law and there was no criminalisation or decriminalisation in the second amendment to the EIT Law over the offense regulated in Article 28 (2). In fact, the “intergroup” element is a key element in determining Daniel’s guilt in this case because the panel of judges views “some members of community in Kemujan Village and Karimunjawa Village” as falling within the scope of “intergroup”.
LeIP is of the view that, in assessing which provision is more favourable for the defendant, a judge shall not solely look at whether there is a repeal of a criminal offense (decriminalization) or an introduction of it (criminalization) in a law. A revision in the elements of a criminal provision which makes it more strict, more precise, and more unambiguous shall also include as conditions which benefit a defendant’s interest because it will be easier for him to defend himself against an accusation. The “intergroup” element in Article 28 (2) before the second amendment to the EIT Law – with reference to the Constitutional Court decision No. 76/PUU-XV/2017 – was an ambiguous element because the Constitutional Court explains that “intergroup” means all entities which are not represented by the terms “ethnicity”, “religion”, and “race”, so that the boundary of “intergroup” is not clear. On this basis, LeIP considers that the Jepara District Court has been negligent in assessing the amendment of the EIT Law and its relation to the defendant’s right to have the most favourable provisions be applied against him.
Second, the court has misguidedly determined that the element of “disseminating information aimed at inflicting hatred or hostility towards certain individuals and/or community group based on ethnicity, religion, race and intergroup” had been proven. One of the basis of the argument is the fact that the phrase “shrimp brain people” had inflicted feelings of hatred among some members of community in Kemujan Village and Karimunjawa Village because there was a commotion or pros-and-cons among themselves. Regrettably, the panel of judges’ argument shows a poor understanding of the human rights context of prohibition on hate speech.
Historically, the introduction of prohibition on hate speech – as regulated in Indonesia in Article 28 (2) of the EIT Law or the provisions of Article 15, Article 16, Article 17 of the Elimination of Racial and Ethnic Discrimination Law – is closely related to issues of freedom of expression and is a form of compliance with the provisions Article 20 (2) of the International Covenant on Civil and Political Rights (ICCPR) which encourages state parties to regulate in their laws prohibition of advocacy of national, racial, or religious hatred. The provision is regulated in the ICCPR because, through the discourse on recognition of the right to freedom of expression after the World War II, a question arose about the extent to which freedom of expression should be allowed, considering problems and dangers of ideologies and beliefs on racial and national superiority [Myungkoo Kaang, et al. (ed), Hate Speech in Asia and Europe: Beyond Hate and Fear, p. 138]. Based on this historical factor, the hate speech prohibition is intended to provide protection for vulnerable groups from threat of discrimination and hate aggression due to racial or national superiority.
Therefore, Article 28 (2) of the EIT Law is incompatible to be applied in Daniel’s case because it is not clear which vulnerable groups are intended to be protected from Daniel’s action. The panel of judges also has no justification in claiming that the application of Article 28 (2) of the EIT Law cannot be separated from the aim of punishment, namely to prevent vigilantism against the defendant by groups who hate the information spread by the defendant. This argument, apart from not having a clear legal basis, further shows the incompetence of the panel of judges in examining cases of hate speech because the hatred prohibited by the law is not hatred towards the information circulated by the defendant but towards vulnerable groups who need to be protected.
In addition, the panel of judges should also refer to various explanations over international human rights instruments, including the Camden Principles and the Rabat Plan of Action, which are relevant in analysing the right to freedom of expression and hate speech. The Camden Principles explain that the elements of “hatred” and “hostility” as part of the prohibition on hate speech must refer to “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”. Meanwhile, the Rabat Plan of Action has provided guidance through the “six-part threshold test” in assessing whether an action deserves to be punished as hate speech, one of which is the element of intent must be proven by “advocacy” and “incitement” from the defendant to cause hatred or hostility towards a community group – in this case community of Kemujan Village and Karimunjawa Village.
Referring to aforementioned references, LeIP concluded that the panel of judges has made a mistake in stating that the element of “hatred” is fulfilled only because there was an uproar or pros-and-cons among the community over the report against Daniel to the police and the rallies from parties who supported and objected Daniel’s criminal proceedings. This is because the existence of pros-and-cons is not a standard in determining “hatred been inflicted” towards a particular group of people. The panel of judges’ considerations also do not clearly show that there are sufficient evidence on the defendant’s evil intent in the form of acts of “advocacy” or “incitement” to inflict hatred or hostility towards the community in question. Thus, referring to Article 28 (2) of the EIT Law before the second amendment, the court should have found Daniel not guilty of committing the offense.
In general, LeIP deeply regrets the verdict in Daniel’s case. The Jepara District Court decision is not in line with the efforts of Indonesian courts which have frequently applied human rights principles, including in the right to freedom of expression, through their decisions. In fact, the court decision is not in line with the statement of the Chief Justice of the Supreme Court in one occasion in which he essentially encourages judges to apply human rights principles in examining and producing decision over cases.
Based on the explanations above, LeIP encourages:
- The Supreme Court to improve the competence and skills of judges in identifying and analysing human rights principles in criminal cases which relates to exercise of the right to freedom of expression;
- The panel of judges at the appeal and cassation level to look into and consider relevant human rights principles related to the prohibition of hate speech in examining the case of Daniel Tangkilisan; and
- The panel of judges at the appeal and cassation level to carefully and thoroughly examine the case of Daniel Tangkilisan by considering application of Article 28 (2) after the second amendment to the EIT Law with reference to Article 1 (2) of the Criminal Code.
Wednesday, 17 April 2024
Lembaga Kajian dan Advokasi Independensi Peradilan (LeIP) / Indonesian Institute for Independent Judiciary
Contact Person:
Muhammad Tanziel Aziezi (tanziel.aziezi@leip.or.id)
Raynov Tumorang (raynov@leip.or.id)
