ANALYSIS: By Kyle Delbyck of the TrialWatch initiative

Journalist Muhammad Asrul is awaiting news from the Indonesian Supreme Court on whether he will spend more time behind bars for reporting on corruption issues. The decision will have a profound impact not only on his life but also on press freedom in Indonesia.

The country is at a turning point after its transition at the end of the 20th century from military dictatorship to democracy.

Many, including civil society and members of the judiciary, have sought to protect journalists – they see a free and functioning press as part of Indonesia’s future.

Others, however, are waging a battle against independent media and freedom of expression, with prosecutions like Asrul’s and the impending passage of a penal code that smacks of authoritarianism. With Indonesia’s two-decade-old democratic path under real threat, the next few months will be decisive.

In 2019, Asrul wrote a series of articles alleging corruption by a local politician. The same official filed a complaint with the police, who subsequently arrested and detained Asrul.

After spending more than a month in jail while police conducted investigations, Asrul was prosecuted under the draconian Electronic Information and Transactions Act (ITE Act), which criminalizes the electronic transmission of defamatory or insulting.

In late 2021, a court found Asrul guilty and sentenced him to three months in prison.

The police bypassed the Press Council
While this is egregious enough in itself, in Asrul’s case the police chose to circumvent the Indonesian Press Council.

The Press Council is an independent government body responsible for protecting journalists in press-related disputes. Police are supposed to coordinate with the Press Council to determine whether a case should be referred to the criminal justice system or resolved through mediation or other out-of-court solutions.

But the police did not give the council a chance to settle the complaint against Asrul, bypassing this critical institution. Equally worrying, the court that sentenced Asrul said the police had the power to override the Press Council in a variety of situations, including when people offended by news reports approached the police directly instead of the advice.

The Clooney Justice Foundation’s TrialWatch initiative, where I work as a senior program manager, monitored Asrul’s trial through its partner, the Center for Human Rights at the American Bar Association.

Next week, we will file an amicus brief asking the Supreme Court to overturn Asrul’s conviction and ensure that the protections offered by the Indonesian Press Council remain a reality for journalists across Indonesia.

TrialWatch monitors trials like Asrul’s in more than 35 countries, seeking to overturn unjust convictions against journalists and marginalized people and reform the laws used to target them.

The ITE law is an example. Since its enactment in 2008, the ITE law has been a key tool in suppressing free speech and freedom of the press in Indonesia, with prosecutions increasing in recent years.

81 people charged
In the first nine months of 2021, for example, at least 81 people have been charged with breaching the ITE Act, “most of them charged with defamation” – the provision under which Asrul was sued. Those convicted of defamation face up to four years behind bars.

While the ITE Act has been the darling of government officials seeking to stifle legitimate criticism, it has also been deployed by corporations and other powerful actors who simply don’t like what someone posted online.

TrialWatch recently monitored a lawsuit in which a woman, Stella Monica, was sued over Instagram complaints about an acne treatment she received at a dermatology clinic. Monica was acquitted but the clinic aggressively pursued the case, subjecting her to nearly two years of legal action.

This stuffy speech playbook may soon get a boost with the revision of Indonesia’s colonial-era penal code. In many countries, changing colonial laws was a step forward, but Indonesia’s iteration is so regressive that when a draft was released in 2019, it sparked widespread protests.

Although the government withdrew the legislation following the protests, this year the new code was resurrected, retaining provisions from the 2019 version that endanger press freedom.

In addition to providing for a prison sentence of up to three years for alleged insults to the president and vice president, the draft code criminalizes the dissemination of “incomplete” information and so-called “false information”. .

In neighboring countries like Cambodia, we have seen false news provisions deployed against those who criticize the authorities.

Attempts to conceal developments
How disturbing these developments are is evident from the Indonesian government’s attempts to hide them. The deputy minister of law and human rights in charge of the review process had previously promised that the legislature would vote on the code by August 17, Indonesia’s Independence Day.

He also said authorities would not share the draft text with civil society or the public because of the risk of disorder. After an outcry, however, the government released the draft in July and promised further consultations, leaving little time for civil society to deliberate and engage the government if the vote does indeed take place in the coming months.

While passage of the code in its current form would be a triumph for government officials and corporate interests seeking to curtail critical speech, it would also be a victory for the increasingly powerful conservative Islamist parties President Joko Widodo leaned on to stay in power.

The draft code falls squarely on the side of conservatives in Indonesia’s tumultuous culture battles, threatening jail time for premarital sex and cohabitation, which would also functionally criminalize LGBTQ+ relationships. Another provision bloats the already expansive blasphemy law, extending it to criminalize comments made on social media.

Although the draft code reflects the reality that repressive forces are gaining ground, it remains to be hoped that the authorities will side with those fighting for basic freedoms. The government has been sensitive not only to pressure from extremists, but also to pressure from pro-democracy forces.

The removal of the code after the 2019 protests and the recent sharing of the draft text are good examples. In another recent example, after enduring intense criticism over the overbroad application of the ITE law, President Widodo ordered guidelines limiting its application, particularly against journalists.

The guidelines, which were introduced after the Asrul case began, explicitly state that in cases where a media outlet has published an article, press regulations – not ITE law – should apply. Although enforcement has been shaky so far, the guidelines demonstrate the power of public pressure and are an additional tool in the battle for press freedom.

Institutional guarantees
Other institutional safeguards are in place. The Indonesian Press Council has a mandate that puts it on par with other government entities and gives it real power to protect journalists – hence the importance of Asrul’s case and the impending Supreme Court decision on the role of the Council.

To show just how important the Press Council is, just jump across the ocean, where press freedom advocates in Malaysia have been fighting for years to establish a similar mechanism, acknowledging its potential to end harassment of independent media.

The courts are also making positive noises. In the face of campaigns by government officials, religious conservatives and corporations to suppress speech, some judges have ruled in favor of human rights protections – from Monica’s acquittal for her skin problems to a recent high-profile acquittal in a blasphemy prosecution.

This means that unlike countries where the cards are stacked, where the legislature, judiciary and press are co-opted by authoritarian powers, all is not lost in Indonesia. Civil society has proven that it can mobilize and that institutional levers can be activated.

But this coming period will be crucial. Shaken by headwinds, the Indonesian government will decide to move forward with the current version of the new penal code. Local-level actors, such as police and prosecutors, will decide whether or not to apply rights-friendly guidelines and laws.

Justice will consider cases with significant consequences for freedom of the press and freedom of expression, such as that of Muhammad Asrul. And even if the penal code is passed, it awaits a deluge of constitutional challenges, putting the judiciary in the spotlight.

Through its TrialWatch initiative, the Clooney Foundation for Justice will continue to monitor these court battles and defend those unjustly targeted with criminal prosecution. With key decisions to come, the fate of Asrul and many others hangs in the balance.

Kyle Delbyck is senior program manager at the Clooney Foundation for Justice’s TrialWatch initiative, where she coordinates trial observations and ensuing advocacy. Grace Hauser, TrialWatch lawyer at the Clooney Foundation for Justice, contributed to this article. First published by Al Jazeera English, it is republished under a Creative Commons license.