BACKGROUND
On 20 October 2021, I wrote a letter jointly with other UN experts to the Government of Indonesia regarding the alleged judicial harassment of woman human rights defender Ms. Fatia Maulidiyanti and human rights defender Mr. Haris Azhar, in relation to two cease and desist letters and a defamation complaint filed against them for the expression of their opinions and the exercise of their freedom of association regarding the alleged involvement of Indonesian military officials in the gold mining business and exploitation of the Blok Wabu area in Intan Jaya, Papua.
Ms. Fatia Maulidiyanti is a woman human rights defender and the Coordinator of the Commission for the Disappeared and Victims of Violence (KontraS). She has been involved in various civil society movements since she was in university, namely through her participation in the student press, working on various human rights issues such as the death penalty, business and human rights, unfair trial, human rights defenders and human rights in conflict situations. She is also the founder of a book donation community for death-row inmates called Books For Tomorrow.
Mr. Haris Azhar is a human rights defender, the Executive Director of Lokataru and the previous Coordinator of the Commission for the Disappeared and Victim of Violence (KontraS). Mr. Azhar has contributed to human rights and public interest litigation cases, events, campaigns and publications for promoting and defending human rights in Indonesia and South East Asia. He was also a member of the Executive Committee of the Asian Forum for Human Rights and Development (FORUM-ASIA) and was the Deputy Chair of the International NGO Forum on Indonesian Development (INFID-Indonesia).
This is a shorter version of the original communication. A press release was also issued on this case on 26 November 2021. The Government has responded to the communication, contesting the use of the term ‘judicial harassment’ and our description of how civil society space in Indonesia is shrinking.
ALLEGATIONS
On 20 August 2021, Mr. Azhar posted a talk show on his YouTube channel, during which he and Ms. Maulidiyanti allegedly discussed the research results from a report by several civil society organizations, including KontraS, regarding the involvement of Indonesian army officials and retirees in the gold mining business in plans to exploit the Blok Wabu area in Intan Jaya, Papua. Ms. Maulidiyanti and Mr. Azhar reportedly implied in the video that a mining company, of which the Coordinating Minister for Maritime Affairs and Investment (the “Minister”) is a shareholder, has mining projects in the Intan Jaya District of West Papua.
In the last three years, the controversial deployment of Indonesian military forces in the central highlands of Papua Province has triggered an escalation of armed conflict between Indonesian security forces operations and the West Papua National Liberation Army (TPNPB). This has subsequently caused the internal displacement of indigenous Papuans and resulted in the killing of civilians. It is estimated that the number of internally displaced persons (IDPs) has reached 13,000 people in the Intan Jaya regency alone as of November 2020. Furthermore, there has reportedly been twelve cases of extrajudicial killings of indigenous Papuans in relation to security force operations in Intan Jaya since January 2020. This is coupled with violence and terror against civilians, especially in the Intan Jaya Regency. Different reports have identified that the presence of military and police posts around the mining concessions are connected either directly or indirectly with the generals.
The mining activities at the Wabu Blok area in Intan Jaya are still in the stage of exploration, thus the extent of the impacts from the current mining activities is yet to be seen. However, based on examples of other gold mining operations in West Papua, it is likely that the gold mining operations in the Blok Wabu area in Intan Jaya, Papua will have a strong impact on the environment and the social life of indigenous communities in Intan Jaya. For instance, mining operations in Degeuwo (Bayabiru District), in the neighbouring Paniai Regency, have significantly affected the environment and the lives of the indigenous peoples in the area. The mining activities in Degeuwo have caused severe damage to the surrounding environment, which is populated by various indigenous tribes such as the Mee, Wolani and Moni. Major environmental damages include deforestation and the pollution of soil around the mining sites which can no longer be used for gardening. Chemicals have contaminated the Derewo River, which indigenous communities use for drinking water, which has cut off local communities from its water supply. Locals who still use the river water for cooking and drinking seriously jeopardize their health. Some mining companies have allegedly been accused of discharging mercury into the Degeuwo river.
On 26 August 2021, Ms. Maulidiyanti and Mr. Azhar received a cease and desist letter from the Minister in response to the above-mentioned talk show on YouTube, requesting that they explain the motive for posting the video, and to publicly apologise to the Minister within five days, promising not to do it again. The cease and desist letter allegedly warned that if an apology was not made, legal action would be taken against Ms. Maulidiyanti and Mr. Azhar.
On 2 September 2021, another cease and desist letter was sent to Ms. Maulidiyanti and Mr. Azhar, similar in nature to that of the first. The cease and desist letters issued by the Minister allegedly state that Ms. Maulidiyanti and Mr. Azhar will face charges under Article 27, paragraph (3) of the Electronic Information and Transactions Law (UU ITE) concerning defamation if they do not apologize for the allegations regarding the statement, and Articles 310 and 311 of the Criminal Code (KUHP) concerning attacking one`s honour and reputation with accusations and defamation respectively. However, the Criminal Code also contains justifications for Ms. Maulidiyanti and Mr. Azhar posting the talk show under Article 310, paragraph (3), which states that, “it does not constitute defamation if the act is carried out in the public interest”.
On 7 September 2021, Ms. Maulidiyanti allegedly sent a response to the second cease and desist letter through her lawyers, stating that her critique in the talk show was aimed at the Minister`s official position, not as an individual. On 8 September, Mr. Azhar also sent a response to the Minister regarding the second cease and desist letter, clarifying his stance.
On 9 September 2021, following the responses from both Ms. Maulidiyanti and Mr. Azhar to the cease and desist letters, the Minister`s legal counsel allegedly announced their decision to report the human rights defenders to the police.
On 22 September 2021, the Minister lodged a defamation complaint against Ms. Maulidiyanti and Mr. Azhar at the Jakarta Police Headquarters. The complaint was allegedly also in response to the talk show, which suggested that the ongoing military operations in West Papua are a means of protecting mining businesses in the province. If charged, Ms. Maulidiyanti and Mr. Azhar could face up to six years in prison.
Mr. Azhar was reportedly similarly targeted for an article he published on Facebook on 28 July 2016, alleging the involvement of Indonesian police officials in corrupt activities, including the alleged acceptance of bribes from an international drug trafficking network. On 2 August 2016, a joint defamation complaint was filed against Mr. Azhar by the National Narcotics Board (BNN), the Indonesian National Armed Forces (TNI) and the National Police under the 2008 Electronic Information and Transactions Law.
CONCERNS
In the communication we expressed concern at the judicial harassment of woman human rights defender Ms. Maulidiyanti and human rights defender Mr. Azhar, through the use of cease and desist letters and a defamation complaint against them, which appear to be directly linked to the legitimate exercise of their right to freedom of opinion and expression as well as of peaceful assembly and of association. Also of concern is the criminalization of defamation and laws that risk undermining the right to freedom of opinion and expression, a right which is guaranteed under a national regulation enacted by the Republic of Indonesia under Law Number 39 of 1999 on Human Rights.
We are extremely concerned by Government public officials’ use of the Electronic, Information, and Transaction Law to threaten activists or human rights defenders for speaking out about the human rights situation in the Republic of Indonesia. The Joint Decree of the Minister of Communication and Information, the Attorney General, and the National Police Chief of the Republic of Indonesia regarding the Guidelines for the Implementation of the Electronic Information and Transaction Law have highlighted that Article 27 paragraph (3) section (c) states an action is not considered a defamation offense, if the content is in the form of an assessment or evaluation result. The statements made by Ms. Maulidiyanti and Mr. Azhar were based on a report that includes methods, data, and references. Therefore, this has fulfilled the above-mentioned requirements, as their statements passed the assessment and evaluation process on an issue that is of public concern. The use of the threat of criminal charges raises additional concerns and is detrimental to the building of public trust in the Government’s efforts to address human rights violations.
We are furthermore concerned by the absence of any justification for the charges brought against them. We are concerned that the charges against them equate the exercise of the right to freedom of expression and to freedom of association with serious criminal offences and characterize their work as illegal. It appears that the judicial harassment of Ms. Maulidiyanti and Mr. Azhar is illustrative of the shrinking space for civil society in Indonesia.
[1] CCPR/C/GC/34, para. 47
