Criticising Indonesia’s Anti-Criticism Law: Irony of Ironies

On 8 February, President Joko Widodo made a call for more criticisms of his government from society. Ironically, his call was met with a shower of criticisms that many people had been charged and jailed precisely for making criticisms, under the Law on Information and Technology (ITE Law) which regulates social media content. The Indonesian Legal Aid Foundation (YLBHI) stated the police “misused criminal provisions” against people who had made criticisms. Amnesty International recorded 119 cases of alleged violations of freedom of expression involving 141 accused under the ITE Law, calling on the President to release them all.

Some of the criticism is misplaced. Since 2008, the law has been used by people or institutions to counterattack their critics. There has not been a systematic government coordinated use of the UU ITE to prosecute critics. Rather, people report their critics to the police who then choose to prosecute (or not). Most symbolic of the weaponization of the Law was the imprisonment of former Governor of Jakarta, Basuki Tjahaja Purnama, for blasphemy after Islamist critics lodged a complaint against him for something he said against the faith. In response, opponents of the Islamists lodged complaints against a political enemy of Purnama, Riziek Shihab, for denigrating Pancasila and then for circulating pornographic material in his private social media communications. Shihab subsequently self-exiled himself to Saudi Arabia in the immediate aftermath of the allegations; the charges against him were recently dropped. He is now back in Indonesia, and in custody under other charges.

The ITE Law has nine clauses that are considered problematic, but it is Clause 27/3 that gives rise to most cases. This clause criminalises “insults” and causing “reputational harm”. Other clauses criminalise “blasphemy” and “pornography”. 

On 15 February, in apparent response to the criticisms of his call, President Joko Widodo stated his concerns that “multi-interpretable” clauses in the Law on Information and Technology (UU ITE) had become a problem. He called on the police to be more selective in pursuing prosecutions and indicated that he may ask the House of Representatives to revise the law. On 17 February, the Coordinating Minister for Politics, Law and Security, Mahfud M.D., announced that the government was forming a team to revise the law. The team comprises the Co-ordinating Minister for Politics, Law and Security, the Minister for Law and Human Rights, the Minister for Communications, the Attorney General and the National Chief of Police. 

Human rights organisations argue that the team should have a broader membership. The decree setting up the team does, however, allow it to request inputs from academics, the media, and activists, among others.

The consequent lack of any visible serious parliamentary opposition and increasing talk of a fading of democracy may have prompted Widodo’s initial call for more criticism.

On 23 February a senior civil servant staff team member stated that the “rubbery” clauses would not be revised because they had already been deemed constitutional by the Constitutional Court. However, on February 25, Mahfud explained that the government would be looking at two possibilities. The first related to providing clearer guidelines for a “just implementation” of the Law. The second related to whether it was necessary and possible to change the Law itself by removing or adding sentences, or by providing additional and formal explanations in the law. He made no commitment to definitively move on both areas.

Meanwhile, the Police have established a new unit to monitor social media. The unit will issue warnings to citizens who post material considered to be violating the ITE Law and order their deletion. Police say they will only charge people as a last resort and will use an “educational approach”. Human rights groups have expressed concerns that the activities of such a unit will generate more fear about what people can say through their social media and question the role of the police as political monitors. The issue of “virtual police”, as they are being called, has attracted massive public attention.

There are two possible dynamics behind these moves by the Widodo government. First, following the rapprochement between President Widodo and his arch-rival, Prabowo Subianto, with Prabowo’s co-option into the cabinet, there may be a desire to reduce the attack and counter-attack reporting of statements to the police, so starkly symbolised by the Purnama and Riziek Shihab example. The consequent lack of any visible serious parliamentary opposition and increasing talk of a fading of democracy may have prompted Widodo’s initial call for more criticism. The second possibility is that Widodo and others were genuinely shocked by the cynical response to his call for more criticisms from society and by the data showing the number of people outside the elite that have suffered under these “rubbery” clauses. 

The outcome of the current revision process will be determined by which of these two dynamics is the strongest. The earlier statement by the official that the clauses would not be changed because the Constitutional Court had approved them, together with the Police’s move to establish their “virtual police”, indicates that there may be resistance within the state apparatus to increasing clarity around the “rubbery clauses” that would make it harder to prosecute people. To what extent the possibility of criminalisation of political and social criticism will be reduced will not be clear, given that it will take another two months for the review process to finish.

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