CIVICUS speaks about a recent court ruling upholding freedom of expression with Alviani Sabillah, researcher at the Centre of Indonesian Law and Policy Studies (PSHK), a research and advocacy institution focused on legal reform.
In a landmark decision, Indonesia’s Constitutional Court struck down three false news and defamation clauses in the 1946 Penal Code. Civil society activists challenged the law after being charged with defamation for criticising government officials. The court’s ruling aims to protect freedom of expression and address concerns about abuse of the law by powerful individuals. However, Indonesia still has several defamation laws, including some recently enacted, that continue to threaten freedom of expression. Civil society continues to work to ensure the precedent set by this ruling contributes to the repeal of the remaining restrictive laws.
What’s the significance of the recent Constitutional Court ruling?
The decision has significant implications because the false news and defamation clauses have often been used by the government and others to criminalise critical speech and expression and deter journalists and activists. Their removal means that people, media and civil society organisations (CSOs) will be less likely to self-censor, leading to more robust public discourse and a more informed citizenry.
The ruling reflects the judiciary’s commitment to implementing human rights principles and standards on freedom of speech and expression. It’s a small victory for journalists, activists and citizens who’ve faced legal consequences for criticising government policies or institutions.
How has civil society contributed to this change?
Civil society contributed significantly to the decision, particularly through its campaign of solidarity with Fatia Maulidiyanti and Haris Azhar, two human rights defenders recently criminalised under the defamation and false news clauses. The Constitutional Court’s review of the law was triggered by their cases.
While the court case was under way, many CSOs ran creative campaigns to highlight the impact of criminal defamation legislation. Others, including PSHK and numerous academics, submitted amicus – friend of the court – briefs, providing arguments for the court to consider.
The petitioners argued that the clauses violated the right to freedom of expression guaranteed by the constitution. They claimed these clauses hindered the public’s right to receive and provide information, essential in a democratic society, because the fact that journalists could face criminal charges for reporting on public interest matters stifled debate and criticism of government actions. They also said the clauses were vague and broad, leading to arbitrary enforcement and abuse. The lack of clear definitions had a chilling effect because people couldn’t be sure what constituted an offence.
It was also argued that penalties were disproportionate, and that defamation and false news could be better addressed through civil remedies. The petitioners highlighted that these clauses were inconsistent with international human rights standards such as those contained in the International Covenant on Civil and Political Rights, which Indonesia has ratified. They cited examples from other jurisdictions where similar laws had been reformed to comply with human rights principles.
Does this decision reflect broader national and regional trends?
While this court decision is important, it may be overly optimistic to see it as part of a wider trend towards decriminalising speech and protecting freedom of expression in Indonesia and the region. The 2022 Freedom in the World report found that five out of 29 countries and territories in Asia – Afghanistan, Hong Kong, Myanmar, the Philippines and Singapore – experienced declines in freedom of expression and none showed improvement. The 2021 Freedom on the Net report also ranks Indonesia among the Asian countries where internet freedom has declined.
Ideally, the court’s decision could serve as a basis for the Indonesian parliament to review other laws that restrict freedom of expression. Unfortunately, this doesn’t seem likely to happen. The current parliament doesn’t seem to share the Constitutional Court’s commitment to freedom of expression.
In its revised version, which will come into force in 2026, the Penal Code retains provisions on insulting the president, state institutions and public officials, and adds new provisions on ‘immoral acts’ and ‘public decency’ that could be used to suppress artistic expression and LGBTQI+ rights.
The Law on Electronic Information and Transactions continues to criminalise online defamation, hate speech and the spreading of false information. These vague provisions allow for arbitrary enforcement, and are often used to target critics, journalists and activists. The Blasphemy Law criminalises blasphemy and is often used to silence religious and cultural expressions that deviate from mainstream beliefs, disproportionately targeting minority religions and local beliefs.
The Law on Mass Organisations gives the government the power to revoke the legal status of CSOs if they are deemed threatening to the unity of the state or its ideology of Pancasila. It imposes strict registration and operational requirements on CSOs. The broad definitions of terrorism and threats to national security of the Anti-Terrorism and National Security Law allow it to target dissent and opposition.
In addition, several bills under discussion, including the Army Bill, Broadcast Bill and Police Bill, contain elements that could restrict and undermine freedom of speech and expression in both physical and digital spaces.
Civil society is actively working to remove these obstacles through advocacy, judicial review, policy engagement, education, coalition building and international cooperation. Civil society’s efforts include raising public awareness, lobbying for legal reforms, providing legal assistance to those prosecuted under these laws and working with international human rights organisations to put pressure on the government.
What other restrictions on fundamental civic freedoms does Indonesian civil society face?
Indonesian civil society also faces restrictions on freedom of association and peaceful assembly. The Law on Mass Organisations imposes strict requirements on the registration and operation of CSOs. It allows the government to dissolve organisations deemed to threaten national unity or contradict the state ideology. CSOs and activists face surveillance, harassment and threats from state and non-state sources, discouraging them from engaging in advocacy and mobilisation.
Public activities such as rallies and demonstrations also require a permit, which can be arbitrarily denied. There have been serious cases of excessive use of force by the police during demonstrations, resulting in injuries, arrests and intimidation of protesters.
Enforcement of the blasphemy law, which disproportionately targets religious minorities and people with unorthodox beliefs, restricts freedom of religion and belief and contributes to social tensions. The Law on Electronic Information and Transactions also restricts online expression. The government has occasionally imposed internet shutdowns in some regions, such as Papua, in an attempt to stifle self-determination efforts.
Press freedom is also restricted. Journalists face threats, harassment and physical attacks, often from powerful individuals or groups unhappy with their reporting. Concentration of media ownership in a few hands leads to biased reporting and limits the diversity of viewpoints.
In this context, Indonesian activists and organisations need international support in the form of funding, technical assistance, diplomatic support and international solidarity. It is vital that international allies continue to remind the Indonesian government of the need to uphold international human rights standards.
Civic space in Indonesia is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with the PSHK through its website or Facebook page, and follow @PSHKIndonesia on Twitter and Instagram.
