INDONESIA: The Second Trial of Mr. Haris Azhar and Ms. Fatia Maulidiyanti, the Prosecutor’s Indictment with Formal Defects and the Lack of Objectivity of the Law Enforcement

Ms. Fatia Maulidiyanti and Mr. Haris Azhar, two Indonesian human rights defenders, returned for their second trial with an agenda for reading the exception or objection note at the East Jakarta District Court. On 17 April, 2023, at the same time that the document was read, the security and human rights situation in Papua had not improved, in fact, it has got even worse. The prolonged armed conflict that occurred, resulted in the emergence of internally displaced persons who were expelled from their homes. In addition, human rights violations continue to occur at the expense of innocent civilians. This condition is exacerbated by the massive exploitation of natural resources, thus creating an ecological disaster.

In the exception note read out at the trial, Fatia and Haris’ lawyers stated that the indictment read out by the Public Prosecutor was flawed. This is because when viewed from the process that has taken place to this day, there have been various irregularities such as the mediation process that should have taken place between the two parties being unilaterally terminated by the law enforcement at the request of the complainant, namely the Coordinating Minister for Maritime Affairs and Investment Mr. Luhut Binsar Pandjaitan.

In addition, the indictment can also be considered premature because the investigation into alleged human rights violations and criminal acts of corruption, gratuities and bribery allegedly involving the Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan should take precedence over law enforcement. It can be seen that there is a partisanship going on, especially when Luhut Binsar Pandjaitan, as a complainant who feels his rights have been violated, has never been examined at the investigation stage. 

In the process of investigation and prosecution, law enforcers are also not objective because they do not take into account the testimony of the experts who are in favour of Fatia and Haris. In this case, the Public Prosecutor only used the expert opinion which was in favour of Luhut Binsar Pandjaitan without completely explaining and considering the opinion of the expert witness in favour of the defendant. Apart from that, the Prosecutor also used the testimony of the expert Trubus Rahadiansyah who should not have legal standing,” said Muhamad Isnur from the Advocacy Team for Democracy.

In the investigation process, there was never a process of examination of the case to see as to whether or not there was a criminal incident in the actions of Fatia and Haris. This has violated Article 9 of the Chief Police Regulation No. 6 of 2019 concerning the Investigation of Criminal Acts.

The continuation of the legal process against Fatia and Haris also violates the Anti-Strategic Lawsuit Against Public Participation principle stipulated in the Decree of the Chief Justice of the Supreme Court, Number 36/KMA/SK/II/2013 concerning the Enforcement of Guidelines for Handling Environmental Cases. This is reinforced by the existence of the Law No. 32 of 2009 and Law No. 39 of 1999 which are more stringent in protecting the work of citizens in defending the right to a good and healthy environment.

Fatia and Haris must be released because what they are currently fighting for is environmental justice in the land of Papua. Article 66 of Law No. 32 of 2009 concerning Environmental Protection and Management has confirmed this. The criminalization of Fatia and Haris is a manifestation of the Government not carrying out the mandate of Article 66 of the PPLH Law.

The status of human rights defenders Fatia and Haris was also strengthened by the National Commission on Human Rights of the Republic of Indonesia through a Statement Letter Number 588/K-PMT/VII/2022 which explains that both of them are human rights defenders who have taken efforts to promote and uphold human rights as stipulated in the Law No. 39 of 1999 concerning human rights. Moreover, the United Nations Human Rights Agency through 3 UN International Human Rights Special Rapporteurs namely the Special Rapporteur on the Situation of Human Rights Defenders (Mary Lawlor), the Special Rapporteur on the promotion of the right to the freedom of opinion and expression (Irene Khan), and the Special Rapporteur on the Rights to the freedom of peaceful assembly and association (Clement Nyaletsossi Voule) through the Letter to the Government of Indonesia No. All IDN 8/2021 dated 20 October 2021, stated that the criminalization of Haris and Fatia was part of the allegation of judicial harassment.

The three UN Special Rapporteurs urged the Government and the judiciary in Indonesia to stop criminalizing defenders and female human rights defenders.

The indictment that was read out by the Public Prosecutor on Monday, 3 April 2023, also did not meet the requirements for klacht delict, and was baseless and made up. The substance that was complained about by the complainant was limited insofar as it was related to the words ‘Playing mine’ and the word ‘Lord’, but, in his indictment, the Public Prosecutor questioned the word ‘criminal’ as a word that attacked the dignity of Luhut Binsar Pandjaitan even though the word was never reported. An indictment that was not based on a complaint should have been null and void.

In this exception, the advocacy team also emphasized that the separation of charges and case files between Fatia and Haris was a form of violation of the law and human rights. Especially during the investigation process, Fatia never testified for Haris and vice versa. The separation of charges carried out by the Public Prosecutor has clearly violated judicial principles such as the principle of simplicity, speed and low cost and the principle of non-self-incrimination as stated in the International Covenant on Civil and Political Rights.

On the basis of the above description, the AHRC urges the Panel of Judges to:

1. Accept Notes of Objection/Exception from the Defendant’s Legal Counsel;¬†

2.Declare that the Public Prosecutor’s Indictment Letter dated does not meet the formal requirements;

3. Declare that the Public Prosecutor’s Indictment cannot be continued before a final and binding decision is made regarding the alleged corruption case on behalf of the Reported Party, the Coordinating Minister for Maritime Affairs and Investments LBP;

4. Declare the Public Prosecutor’s Indictment against Fatia and Haris null and void;

5. Declare that the process of examining the case against Fatia and Haris is postponed until a decision with permanent legal force is made regarding the alleged corruption case on behalf of the Reported Party, the Coordinating Minister for Maritime Affairs and Investments LBP