The proposed revision of the Information and Electronic Transaction Law (UU ITE) No.19/2016 by the government has led to speculations from civil society groups and members of the opposition that the government intends to expand its powers to include other avenues of criminalization under to an already ambiguous clause. The proposed revision will allegedly include a guideline to interpret the existing defamation clause despite calls from the opposition and public to completely remove the clause. These calls arose from perceiving the government being overzealous and having skewed interpretation of what constitutes as defamation. Due to recent rises in government arrests under the defamation clause, an attempt to further specify the clause with minimum community involvement raises concerns with the government’s growing authoritarian nature. Clamping down on government critiques on the internet only adds to further polarize Indonesian society under pro-government and opposition camps. The government as a political entity should instead focus on minimizing polarization by being a moderating force instead of resorting to restraining its citizens right to the freedom of speech.
The Defamation Clause: An Attempt to Maintain Stability in an Increasingly Politically Polarized Society?
The inclusion of the defamation clause was first enforced as law back as UU ITE No.11/2008before its eventual amendment as UU ITE No.19/2016. The government’s rationale for the law was to limit the dissemination of negative content as the number of internet users in Indonesia increases. The ambiguous nature of the defamation clause has resulted in many cases of individuals invoking the law against one another to settle petty disputes. It has also been allegedly abused by the government to criminalize political dissidents. According to an interview with the Commission for Missing Persons and Victims of Violence (KontraS ) Deputy Coordinator Rivanlee Anandar mentioned that in its current implementation, police officers are given jurisdictional mandate to summon alleged suspects to the police station for questioning without prior consideration of the context, speaker, intention and the content of the speech making this a case of “guilty until proven innocent”. During an interview with the Ministry of Communication and Informatics (Menkominfo) Spokesperson Dedy Permadi, he mentioned that the government’s solution to remedy this debacle will be to provide a “guideline” for the interpretation of the defamation clause. However, the revision would ostensibly be favourable to the government, will only further open avenues of criminalization of political dissidents.
It is worth noting that despite its well-intentioned purpose to ensure a healthy internet space for its citizens, the same law has numerously been abused to silence political critiques. It is worth noting that there are indications of the rise in abuse of the defamation clause occurring during the course of President Joko Widodo’s administration. The rise in these numbers was largely attributed to the increasing political polarity of Indonesian citizens as a result of the heated presidential elections back in 2014 and 2019. Rivanlee mentioned that of the reported 31 Indonesians were currently being processed for crimes under the UU ITE Law, a majority of these cases were for alleged defamation against the President, Police, local government institutions and high-ranking political appointees. However, it is imperative to view this data within the context of the existing political dynamics occurring during the contentious presidential elections in the past. During the 2014 and 2019 elections, both pro-Jokowi supporters and opposition actively used political buzzers in social media to sway the public. Some of these allegations towards the government at times took an inciting tone for example accusing Jokowi as a communist, anti-Islam and a Chinese puppet etc. Some of these allegations were outlandish and misleading that the election was no longer a matter of which candidate has a better program for the country, but who is a better Muslim, more anti-communist and anti-foreign interest. Some of the fake news included incitements that provoked acts of treason against a legitimately elected government.
The Problem with Exploiting Political Polarization
One underlying theme seems to highlight the root problem of the ongoing plan to revise the UU ITE Law: growing polarity. This has manifested into a war of words between both pro-government supporters and the opposition on the internet with one crying foul against the other over the abuse of the defamation clause. This growing political polarization is well illustrated by a survey released by Indikator Politik Indonesia (IPI) in 2020 which showed that from a total of 1200 respondents 36% believed that Indonesia’s democracy was deteriorating while the same survey also found 57.7% believed that the government had used excessive force towards people with diverging views. This data shows a growing perception of the government’s willingness to criminalize its citizens for expressing their political opinion as a quick fix to issues that stemmed from political polarization of its people. Ironically, there are also instances the government has also indirectly endorsed its supporters to use the same tactics used by his opposition against them in the internet which only fuels the growing mistrust towards the government in terms of allowing constructive critique crucial for the functioning of a democratic society. The growing mistrust with each other has led to a political deadlock over what the government views as an attempt to sabotage a democratically elected government and the opposition’s claim of the government growing increasingly authoritarian.
This phenomenon underlines a flaw in the Indonesian democratic system where instead of finding ways to reduce polarization, both parties seek to use it to achieve political ends. Both the opposition and the government as major players with a large political following should serve as a moderator instead of actively instigating attacks against the other. The government should also leverage on its influence on its supporters to be open to constructive criticism especially towards its programs instead to resorting to buzzers to silence critiques and evoking the defamation clause. The opposition as a legitimate representative of the political interests of the society should also leverage its influence especially in the areas in encouraging proper conduct of expressing their dissatisfaction to the government instead of resorting to personal slander and spreading false news. In a well-functioning democratic society, the first response to such polarity would not be to suspend the freedoms of its citizens, instead address the underlining cause of political polarity. It is worth noting that the existing UU ITE has clauses against the discriminatory use of race, ethnicity, religion and ethnic groups (SARA). The government should instead strengthen such laws in its government institutions and political parties should play a role in promoting a self-regulating normative body that prevents the use SARA issues towards its followers and members. Culminating from this, the government could consider removing the defamation clause altogether.
Finding a Middle Ground
There is no denying the government’s right to protect its interest to carry out its development agenda. In doing so, however, the government could do better than evoke authoritarianist ideals to subdue critiques from civil society and the opposition. A middle way around the ongoing debacle should be one of bridging differences, reconciliation and commitment. One being the involvement of civil society groups and members of the opposition with the ongoing government task force’s revision of the UU ITE via feedbacks and recommendations. Public involvement with the project will ensure that plans to provide guidelines to the defamation clause does not infringe the right of Indonesians to voice their political opinion and more importantly come up with agreeable standards on how to determine an act as defamation. Secondly, the government should leverage its position as a role model to educate and promulgate proper ways to voice political opinion that is respectable and fair towards its political institutions, political parties and voter base instead of resorting to arrests made under the defamation clause. This advice should also be extended to opposition parties as legitimate representatives of Indonesia’s democratic institutions. Political parties should be self-regulating and put clear guidelines on how proper politics are conducted and should not deviate from properly addressing the shortcomings of the incumbent government’s programmes.
It is also advisable that the government applies an internationally acknowledged standard of determining the difference between free speech and hate speech under the Rabat Plan of Action in which Indonesia is a signatory to. In this aspect, the government or the police must pass a rigid threshold test for expression that are considered criminal offences mainly through the context of the critique, the speakers position in society, the speakers intent, content or form (whether it contains incitement, extent of the free speech and likelihood to incite crime.