National, international groups submit amicus curiae in Fatia-Haris defamation case

CNN Indonesia – January 5, 2024
Azhar (left) and Maulidiyanti pictured at East Jakarta District Court – Undated (CNN)

Jakarta – As many as 20 individuals and a network of national and international civil society groups have sent an amicus curiae brief to the panel of judges at the East Jakarta District Court which is currently hearing a defamation case against human rights activists Fatia Maulidiyanti and Haris Azhar brought against them by Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan.

An amicus curiae (literally "friends of the court") is a individual or organisation that is not a party to a legal case but is allowed to assist a court by providing legal opinions on a case being examined. The legal opinions expressed in the amicus curiae can be used by the judges as consideration and food for thought in deciding a case.

As reported on the Indonesian Center for Legal and Policy Studies (PSHK) – a research and advocacy institution for legal reform involved in the amicus curiae – the document was submitted to the East Jakarta District Court on Monday, December 11.

The document contains 54 pages which provides a brief explanation of the amicus curiae and its practice in the Indonesian judiciary, the problems with Article 27 Paragraph 3 of the Information and Electronic Transaction (ITE) Law with regard to freedom of expression and opinion, and the assertion that Maulidiyanti and Azhar are human rights defenders who should receive protection from any legal threats.

According to the PSHK, research results along with discussions and the expression of views and opinions regarding research cannot be prosecuted. This is a logical consequence of academic freedom and freedom expression and opinion.

"A review of the scope, principles and nature of academic freedom shows that the actions taken by the defendants in the a quo case are an inseparable part of academic freedom that should be protected and free from all lawsuits", the PSHK wrote in the amicus curiae document.

Moreover, the PSHK explained that Indonesia guarantees academic freedom under Articles 28, 28C, 28E, 28F of the 1945 Constitution, Law Number 39/1999 on Human Rights, Article 13 (the right to education and scientific development) and Article 19 of Laws 11 and 12 of 2005 on the Ratification of the International Convention on Economic, Social and Cultural Rights.

Furthermore, also PSHK also highlighted the application of Article 27 of the ITE Law that is being used to indict Maulidiyanti and Azhar, which according to the PSHK is problematic because it threatens freedom of expression and opinion.

The PSHK emphasises that the interpretation of articles that impact on limiting freedom of expression and opinion as a fundamental right must be applied strictly as mandated by Article 19 paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR) – which has been ratified through Law Number 12/2005.

All restrictions must fulfill three things. First, be regulated by law. Second, be applied to respect the rights and reputation of others, protect national security or public order, or to protect public health or morals. Third, be applied as necessary and proportionally to achieve legitimate goals.

"More specifically, as cited in the United Nations Human Rights Council Universal Periodic Review (A/HRC/12/16), the state may not impose restrictions on discussion about government policies and political debates; reporting on human rights, government activities and corruption; participating in election campaigns, peaceful demonstrations or political activities; and the expression of opinions and differences of opinion, religion or beliefs, including by people who are part of minority or vulnerable groups,", explained the PSHK.

The PSHK added that the public prosecutor (JPU) prosecuting the Maulidiyanti and Azhar case did not take account the Joint Ministerial Decree (SKB) by the Minister of Communication and Information, the Attorney General's Office and the Indonesian police on guidelines for the implementation of certain articles in the ITE Law.

"On the contrary, [the articles on] insults and defamation are still used even though the SKB clearly excludes the imposition of these article when it is related to discussions about government policy, reporting of human rights, government activities and corruption, and in the form of an assessment, opinion or the results of an evaluation or a reality", wrote the PSHK.

The PSHK is of the view that Maulidiyanti and Azhar are environmental and human rights defenders who legally according to law should receive protection and be free from all lawsuits.

This is also confirmed in Explanatory Document (SK) Number 588/K-PMT/VII/2022 issued by the National Human Rights Commission (Komnas HAM) and statements by several UN Special Reporters.

Based on these legal views, the PSHK as an amicii (friend of the court) is making a number of recommendations to the panel of judges handling the cases.

The PSHK is asking the panel of judges to examine the nature of scientific research and discussions conducted on it and that it be considered from the aspect of fulfilling academic freedom, expression and opinion in the academic context as regulated under international and national law.

The panel of judges is also being asked to examine and consider Article 19 Paragraph 3 of the ICCPR as ratified by Law Number 12/2005 and the Joint Ministerial Decree on guidelines for applying certain articles in the ITE Law.

"The panel of judges should release the defendants from all charges in the case a quo", the PSHK wrote.

Aside from the PSHK, several other groups were involved in sending the amicus curiae brief to the court including Indonesia Calling or the IM57+ institute, the Indonesian Forum for the Environment (Walhi), the Indonesian Center for Environmental Law (ICEL), the People's Earth Heritage Foundation (Pusaka) and the Indonesian Caucus for Academic Freedom (KIKA).

Meanwhile the individuals involved include Fia Hamid from the Capital Punishment Justice Project and Ensemble Contre la Peine de Mort) and Professor Tara Vanho from the University of Essex. (ryn/sfr)

[Translated by James Balowski. The original title of the article was "20 Orang Serta Jaringan Masyarakat Sipil Kirim Amicus Curiae Perkar".]