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INDONESIA: Two activists are accused of criminal defamation by the Attorney General after questioning gaps in his annual budget

November 4, 2009

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-148-2009 



4 November 2009
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INDONESIA: Two activists are accused of criminal defamation by the Attorney General after questioning gaps in his annual budget

ISSUES: Human rights defenders; freedom of expression; corruption
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information that two anti-corruption activists have been accused of defamation by the Attorney General's Office (AGO), after their group publicly pointed out a multi-trillion rupiah gap in the AGO’s annual budget and called for an investigation. The case raises questions about the use of the defamation law to stop the public's criticism of institutions and prompting of reforms. Since the suspect data was taken from the State Audit Board report, the responsibility for bringing the information to light belonged to that institution, however it failed to do its job. Governmental support and protection must be given those willing to expose corruption.

CASE DETAILS:

In January this year Indonesian Corruption Watch (ICW) held a press conference to present its analysis of the State Audit Board (BPK) report from 2004-2008, and to highlight a gap of approximately IDR (rupiah) 7 trillion that was found in the office of the Attorney General.

The conference was called, 'Reflections of the Court and the Supreme Court and projection of the corruption eradication in 2009' and on 5 January the data was published widely in national media. Front page headlines in one newspaper, the Rakyat Merdeka accused the AGO of corruption, asking: 'Money of Corruption case was corrupted, why have IDR 7 trillion not been transferred to the state treasury?'

The next day the head of the AGO's central information department announced at a press conference that they would file a case of criminal defamation against Mr. Emerson Yuntho and Ms. Illian Deta Arta Sari (both pictured) from the ICW, because of the article in the Rakyat Merdeka. Seven AG representatives submitted the complaint on 7 January.

The ICW had met with the AGO before holding the press conference to discuss the findings. On 12 December several activists (Mr. Emerson Yuntho, Mr. Adnan Topan Husodo and Mr. Febri Diansyah) had met with the Junior Attorney General for special crimes, Mr. Marwan Effendi. They reportedly discussed earlier claims that the AG had made in the press, notably, that his office had saved IDR 8 trillion (USD 830 million) of its budget, which would be refunded into the state treasury. Yet based on ICW analysis of BPK data, the state treasury received just IRD 382 billion, leaving IRD 7.72 trillion.

Although Effendi claimed, surprisingly, that the state BPK data was wrong and told the NGO that certain amounts had been set aside for use by the AGO, ICW staff found that his office's report – only given to them at the end of the meeting – still left money unaccounted for, and they then held the press conference. Emerson Yuntho and Illian Deta Arta Sari received summons letters naming them defendants in the criminal defamation case on 7 January. Their alleged crimes, in the Indonesian Penal Code (PDF) read as follows:

Article 311 Paragraph 1: Any persons who commit the crimes of slander or libel in case proof of the truth of the charge fact is permitted, shall if he does not produce said proof and the charge has been made against his better judgment, being guilty of calumny be punished by a maximum imprisonment of four years.

Article 316 (Criminal defamation against government officials): The punishment laid down in the foregoing articles of the chapter maybe enhanced with one third, if the defamation is committed against an official during or on the subject of the legal exercise of his office.

ADDITIONAL COMMENTS:

Human rights activists in Indonesia are already campaigning to protest the criminal proceedings against two members of the Corruption Eradication Commission (KPK), and the lack of respect given to the national commission by Indonesian police and the government of President Yudhoyono. Chandra Hamzah and Bibit Samad Riyanto were accused with the abuse of power after the commission started investigating corruption among high ranking members of the Indonesian National Police.

In three other recent cases reported by the AHRC human rights defenders and activists have been charged with crimes for their advocacy work. These include the Coordinator of the Commission for the Disappeared and Victims of Violence, Usman Hamid, who was accused of criminal defamation for seeking to investigate Munir’s murder (see UAC-118-2009), eight activists in Aceh, who were charged with inciting hatred against the government because they were giving out pamphlets (see: UAC-197-2008), and another Aceh activist charged with treason for organising a peaceful demonstration (UAC-262-2008).

Articles 311 and 316 are frequently used by the Indonesian government against civilians, particularly human rights defenders who challenge government policies that conflict with human rights norms and democratic principles. The defamation article in the Indonesian Penal Code is a colonial legacy, and the government’s reluctance to revise it has allowed its continued abuse by officials to restrict freedom of expression and silence reformers and activists.

As a member of the United Nations (UN) and a democratic state, Indonesia must respect and adopt international human rights principles such as the freedom of expression (art. 19 of the Universal Declaration of Human Rights and article 18, of the International Covenant on Civil and Political Rights – ICCPR) into their domestic legal framework. Furthermore, as a state party of the International Covenant on Civil and Political Rights the government is obliged to fulfil article 16 (equality of law), and article 15 (presumption of innocence).

The right to the freedom of expression and opinion are legally enshrined in the constitution of Indonesia. In article 28E and in Indonesian Law no 39/1999 regarding Human Rights in article 23 p. 2 and article 25 (freedom of opinion in public area) as well as in Law no. 13/2006 regarding Witness and Victims Protection, in particular article 10 therein, which reads:

Witnesses, Victims, and the complainant can not be legally prosecuted by criminal law and civil law on the report, testimony that will, being, or has been given.

The Asian Human Rights Commission would also question the triumph of the Attorney General in saving such a large amount of money, when that money was allotted to be fully utilised for the good of the country. Were the office widely considered to be doing a good job there would certainly be an element of pride in the savings, however the inaction of the Attorney General's office in cases of gross human rights violations, and the immunity enjoyed by many officials based on its insufficient work would suggest that the money is needed. (See a recent open letter OLT-030-2009 for more information on the failure of the AGO). If the Attorney General's office is not lacking in resources, the AHRC would like to question why it is not doing a better job.

SUGGESTED ACTION:

Please write a letter to the following authorities calling for their immediate intervention into the allegations against Mr. Emerson Yuntho and Ms. Illian Deta Arta Sari, and supporting their calls for investigations into corruption at the office of the Attorney General. Please also call for a review of the defamation law by the Indonesian government and for the protection of human rights defenders in Indonesia.

The AHRC is writing to the UN Special Rapporteur on the situation of human rights defenders, and on the promotion and protection of the right to freedom of opinion and expression,
requesting their intervention in this case.

To support this appeal please click here:

SAMPLE LETTER:

Dear _______________,

INDONESIA: Two activists are accused of criminal defamation by the Attorney General after questioning gaps in his annual budget

Name of victim: Mr. Emerson Yuntho
1. Ms. Illian Deta Arta Sari (both of them are activists of Indonesian Corruption Watch)
Name of alleged perpetrator : The Attorney General, Mr. Hendarman Supandji and official members
Date of  incident: 5 to 7 January 2009

I'm writing to express my deep concern at the accusation of criminal defamation against two anti corruption activists from the Indonesian Corruption Watch (ICW), Mr. Emerson Yuntho and Ms. Ilian Deta Artha Sari.

I understand that in January this year Indonesian Corruption Watch (ICW) held a press conference to present its analysis of the State Audit Board (BPK) report from 2004-2008, and to highlight a gap of approximately IDR (rupiah) 7 trillion in the Attorney General's office budget report. The conference was called, 'Reflections of the Court and the Supreme Court and projection of the corruption eradication in 2009' and on 5 January the data was published widely in national media.

The next day the head of the AGO's central information department announced at a press conference that they would file a case of criminal defamation against Mr. Emerson Yuntho and Ms. Illian Deta Arta Sari from the ICW, because of an article in the Rakyat Merdeka. Seven AG representatives submitted the complaint on 7 January.

I have been told that the ICW had met with the AGO before holding the press conference to discuss the findings. On 12 December several activists (Mr. Emerson Yuntho, Mr. Adnan Topan Husodo and Mr. Febri Diansyah) had met with the Junior Attorney General for special crimes, Mr. Marwan Effendi. To discuss earlier claims that the AG had made in the press, notably, that his office had saved IDR 8 trillion (USD 830 million) of its budget, to be refunded into the state treasury. Based on ICW analysis of BPK data, the state treasury received just IRD 382 billion, leaving IRD 7.72 trillion.

However although Mr. Effendi claimed, surprisingly, that the state BPK data was wrong, and told the NGO that certain amounts had been set aside for use by the AGO, ICW staff found that his office's report – only given to them at the end of the meeting – still left money unaccounted for, and held the press conference. Emerson Yuntho and Illian Deta Arta Sari received summons letters naming them defendants in the criminal defamation case on 7 January, under articles 311 and 316 of the Indonesian Penal Code.

The case raises questions about the use of the defamation law to stop public criticism of institutions, with the aim of prompting reforms. Since the suspect data was taken from the State Audit Board report, the responsibility for bringing the information to light belonged to that institution, however it failed to do its job. Governmental support and protection must be given those willing to expose corruption.

I understand that this is not an isolated incident in Indonesia. Previously, three other recent cases reported by the Asian Human Rights Commission include the Coordinator of the Commission for Disappeared of Victims of Violence, Usman Hamid being accused of criminal defamation for seeking to investigate Munir’s murder and eight activists in Aceh being charged with inciting hatred against the government because they were giving out pamphlets. Another was charged with treason for organising a peaceful demonstration.

As a State Party to the International Covenant on Civil and Political Rights the government of Indonesia is obliged to respect the freedom of expression and opinion of its citizens, and to make additional efforts to protect the rights of those who fight for justice.

I urge that the government immediately intervene to ensure that a prompt and impartial investigation is made into the accusations made against Mr. Emerson Yuntho and Ms. Illian Deta Arta Sari and to guarantee that they will not be charged for simply speaking the truth. I also urge the government to start a thorough review of the defamation law to prevent further abuse by irresponsible officials.
I would also question the triumph of the Attorney General's Office in saving such a large amount of money, considering the size of the problems that still face it, and the improvements that need to be made in its operation, whether regarding court delays, past cases of disappearances or allegations of police abuse and corruption.

And last, I call for the Indonesian government to conduct a thorough investigation into the alleged missing funds at the Attorney General's Office.

I look forward to your action in this matter.

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

Mr. Susilo Bambang Yudhoyono
President of Republic of Indonesia
Presidential Palace,
Jl. Medan Merdeka Utara Jakarta Pusat 10010
INDONESIA
Tel: +62 21 384 5627, ext. 1003
Fax: +62 21 231 4138, 345 2685, 345 7782
Email: mallarangeng@yahoo.com

Mr. Hendarman Supandji
Attorney General
Kejaksaan Agung RI
Jl. Sultan Hasanuddin No. 1
Jakarta Selatan
INDONESIA
Tel: + 62 21 7221337 , 7397602
Fax: + 62 21 7250213

Mr. A.H. Semendawai, SH, LLM
Chairperson of Commission for Witness and Victims Protection
(Lembaga Perlindungan Saksi dan Korban)
Jl. Proklamasi No. 56 Gedung Perintis Kemerdekaan No. 56 Jakarta
INDONESIA
Fax. +62 21 31927881

General Bambang Hendarso Danuri
Chief of Indonesian National Police
Jl. Trunojoyo No. 3
Jakarta Selatan
INDONESIA
Tel: +62 21 721 8012
Fax: +62 21 720 7277
Email: polri@polri.go.id

Mr. Patrialis Akbar
Minister of Justice and Human Rights
JI. H.R. Rosuna Said Kav. 6-7
Kuningan, Jakarta Selatan
INDONESIA
Fax: +62 21 525 3095

Mr. Ifdhal Kasim
Chairman of the National Human Rights Commission (KOMNAS HAM)
Jl. Latuharhary No. 4B Menteng
Jakarta Pusat 10310
INDONESIA
Tel: +62 21 3925230
Fax: +62 21 3151042/3925227
Email: info@komnasham.go.id

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Thank you.

The Urgent Appeals Programme (ua@ahrchk.)
and the Indonesia desk (Indonesia@ahrc.asia)
The Asian Human Rights Commission 

asia

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-148-2009
Countries :
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.