The Asian Human Rights Commission (AHRC) has received information regarding the arrest and trial of Alexander Aan, a 31-year-old civil servant in Padang, West Sumatra, who was arrested for posting a status on Facebook questioning the existence of god and administering a Facebook group called Ateis Minang (Minang Atheists). He is also being charged for uploading a note and comic depicting and insulting Prophet Muhammad. He has been indicted with three charges, including for disseminating religious hatred on the internet, which might lead to six-years imprisonment.
According to LBH Padang (Padang Legal Aid Institute), a local NGO part of the Indonesian Legal Aid Foundation (YLBHI), on 18 January 2012 some residents of Pulau Punjung came to Alex’s office in Dharmasraya, Padang, after learning that Alex had posted a note entitled ‘The Prophet Muhammad was attracted to his own daughter-in-law’ and a comic entitled ‘The Prophet Muhammad had been sleeping with his wife’s maid.’ The local newspaper reported that Alex was close to being attacked by the mob, which was angry as they considered his posts to have insulted Islam. The police came right before Alex was attacked and he was later brought by the police to the Pulau Punjung sub-district police station for his own safety.
At the police station, Alex told the police that he is an atheist and that he is a member of a Facebook group named Ateis Minang. As one of his Facebook status updates, Alex wrote, ‘if you believe in god, then please show him to me.’
His trial has commenced and he is indicted on three charges: disseminating information aimed at inflicting religious hatred (as prohibited in Article 28 (2) of the Electronic Information and Transaction (ITE) Law), religious blasphemy (under Article 156a (a) of the Indonesian Penal Code, KUHP) and calling for others to embrace atheism (under Article 156a (b) of the KUHP). According to the Prosecutor’s Letter of Indictment, Alex’s posts on Facebook are against Islam and had insulted the religion. Alex’s posts have also caused outcry in the community whose members are mostly Muslim. Moreover, the prosecutor argued that Alex’s posts may initiate hatred towards Islam in an individual or a group of individuals.
Indonesia is a state party to the International Covenant on Civil and Political Rights (ICCPR), article 19 paragraph (2) of which guarantees the right to freedom of expression. Although freedom of expression is not an absolute right, according to paragraph (3) of the article, it can be restricted only if the limitation is provided by law and necessary ‘for respect of the rights or reputations of others and for the protection of national security or of public order (ordre public), or of public health or morals.’
In this case, whilst it is obvious that there is no public health or national security issues involved, it might be possible to argue that public order or public moral issues are at stake. Yet the Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPRestablishes that ‘public order’ is at threat when the rules that ensure the functioning of society are violated. Thereby, what Alex has done does not pose a threat to public order because the society still functions as it usually does; his actions cannot therefore be prohibited or restricted based on this reason.
Neither can it be claimed that Alex’s posts have violated public morals, as according to various human rights interpretive documents, ‘morals’ should not be based merely on principles deriving exclusively from a single tradition. Under Islam’s standard of morals, Alex’s posts on Facebook might amount to a threat to public morals, but this might not be the case under the standards of other religions’ or philosophies.
Bearing in mind that the ‘rights or reputations of others’ in article 19 (3) of the ICCPR refers only to individuals and not to abstract concepts such as religion or belief, it can be concluded that no one’s rights or reputations are at stake in this case. This view has been upheld by the 2008 Joint Declaration on Defamation of Religions, And Anti-Terrorism and Anti-Extremist Legislation (Joint Declaration) issued by the special representatives of various regional and international human rights bodies.
Another permissible limitation on the freedom of expression is when the exercise of such right constitutes propaganda for war or any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence as enshrined in article 20 of the ICCPR. Again, Alex’s posts do not amount to any of these. His note and comic merely tell a story on the sexual relationship between the Prophet Muhammad and his daughter-in-law and his wife’s maid. These may constitute as insults, and may contain information not in accordance with the Quran, but they do not encourage anyone to discriminate, commit violence, or hostility against Islam or Muslims. If anything, Alex’s posts should only be categorised as religious defamation, the concept of which however, is itself against human rights principles.
As the Joint Declaration puts it, ‘restrictions on freedom of expression should be limited in scope to the prediction of overriding individual rights and social interests, and should never be used to protect particular institutions, or abstract notions, concepts or beliefs, including religious ones.’
The right to freedom of religion cannot be used to justify the prohibition of religious defamation either. The right to freedom of religion does not include the right to protect religious feelings; it only covers the right to have, adopt and manifest one’s religion.
It is also essential to emphasise that freedom of religion does not simply protect theistic beliefs but also non-theistic and atheistic beliefs as well as the right not to profess any religion or belief, as stipulated in the UN Human Rights Committee’s General Comment No. 22. Indonesia, therefore, has the obligation to ensure that the atheists within its territory and jurisdiction can also exercise their belief as freely as other members in the society following particular religions.
Please write to the listed authorities below urging them to stop the legal proceeding against Alexander Aan. More importantly, please request them to repeal any laws which are contradictory with Indonesia’s international obligations on freedom of expression and freedom of religion.
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INDONESIA: An atheist on trial for religious defamation in Padang, West Sumatra
Name of victim: Alexander Aan
Names of alleged perpetrators: Police officers of Pulau Punjung Sub-District Police Station, prosecutors of Sijunjung District Prosecutors Office, potentially the panel of judges at the Muaro Sijunjung District Court who examines Alex's case.
Date of incident: 18 January 2012 – present (ongoing)
Place of incident: Dharmasraya, Padang, West Sumatra
I am writing to voice my concern regarding the case of Alexander Aan, an atheist civil servant in Dharmasraya, Padang, West Sumatra. Alex was arrested, charged and tried for posting a status on Facebook questioning the existence of God. He is also alleged to have disseminated religious hatred on the internet by posting a note and comic on Facebook entitled ''The Prophet Muhammad was attracted to his own daughter-in-law' and 'The Prophet Muhammad had been sleeping with his wife's maid.'
According to the prosecutor's Letter of Indictment, Alex's actions have insulted Islam as well as caused outcry in the community. His posts are also considered as persuading others to embrace atheism, which is a crime under article 156a (b) of the Indonesian Penal Code (KUHP). In addition to this, Alex is also charged with article 28 (2) of the Electronic Information and Transaction (ITE) Law for disseminating religious hatred on the internet and article 156a (a) of the KUHP on religious defamation.
I seriously regret that the KUHP criminalises activities pertaining to persuading other people to embrace atheism. Article 156a (b) of KUHP is not only open to arbitrary interpretation, but it is also contradictory with the right to freedom of religion. I would like to remind you that Indonesia is a state party to the International Covenant on Civil and Political Rights (ICCPR) which guarantees freedom of religion. According to the UN Human Rights Committee's General Comment No. 22, freedom of religion also includes the freedom to have and adopt atheistic belief. Alex's Facebook status questioning the existence of god is merely an expression of this belief, which should not be punished.
I am of the view that Alex's posts on Facebook should be seen as an exercise of his freedom of expression. While I am aware that such freedom might be subjected to restrictions, I would like to emphasise that these restrictions only apply when it is necessary to respect the rights or reputations of others and for the protection of national security, public order, health, or morals. In this case, Alex's action do not pose a threat to any of those; neither do they amounts to an advocacy of religious hatred, incitement to discrimination, hostility or violence. His posts might have insulted Muslims and Islam yet they do not contain any statements which encourage other people to discriminate, commit violence or be hostile to the Muslims. Moreover, under human rights principles, there is no such thing as 'the right not to be offended' and the freedom of religion does not include the right to protection of religious feelings.
I would like to draw to your attention the Joint Declaration on Defamation of Religion which was issued in 2008 by the representatives of various human rights bodies who deal with the issue of freedom of expression (UN, OSCE, OAS and ACHPR). According to this declaration, "the concept of 'defamation of religions' does not accord with international standards regarding defamation, which refer to the protection of reputation of individuals, while religions, like all beliefs, cannot be said to have a reputation of their own". The Declaration also establishes that "restrictions on freedom of expression should be limited in scope to the prediction of overriding individual rights and social interests, and should never be used to protect particular institutions, or abstract notions, concepts or beliefs, including religious ones".
Based on all of these, I urge you to stop all legal proceedings against Alexander Aan as well as to release and provide him with adequate compensation. I strongly recommend you to withdraw any laws and provisions which are not in accordance with freedom of expression: the ITE Law as well as article 156a (a) and (b) of the KUHP. Only by so doing can the Indonesian government comply with its international obligations concerning the right to freedom of expression.
I look forward to seeing your swift action on this matter.
PLEASE SEND YOUR LETTERS TO:
1. Mr. Susilo Bambang Yudoyono
President of the Republic of Indonesia
Jl. Veteran No. 16
Tel: +62 21 386 3777, 350 3088
Fax: +62 21 344 2223
2. Prof. Harkristuti Harkrisnowo
Human Rights General Director
Ministry of Law and Human Rights
Jl. HR Rasuna Said Kav. C-1 Kuningan
Jakarta Selatan 12920
Tel: +62 21 252 1344
Fax: +62 21 45555 5676
3. Mr. Suryadharma Ali
Minister of Religion Affairs
Jl. Lapangan Benteng Barat No. 3-4
Fax: +62 21 381 2306
E-mail: firstname.lastname@example.org, email@example.com
4. Mr. Ifdhal Kasim
KOMNAS HAM (National Human Rights Commission)
Jl. Latuharhary No. 4B Menteng
Jakarta Pusat 10310
Tel:+62 21 3925 230
Fax: +62 21 3151042/3925227
5. Mr. Basrief Arief
Jl. Sultan Hassanudin No. 1, Jakarta Selatan 12160
Tel: +62 21 722 1388, 720 3062
Fax: +62 21 725 1277
6. Mr. Pipuk Firman Priyadi
Head of Sijunjung District Prosecutors Office
Jl. Sudirman No. 1 Muaro Sijunjung
Telp: +62 754 20036
7. Mr. Suwarsa Hidayat
Head of Muaro Sijunjung District Court
Jl. Prof. M. Yamin, SH No. 51
Muaro Sijunjung 27511
Tel: +62 754 20065
Fax: +62 754 20066
Urgent Appeals Programme
Asian Human Rights Commission (firstname.lastname@example.org)