ANALYSIS: By Kyle Delbyck of the TrialWatch Initiative

Journalist Muhammad Asrul is awaiting word from Indonesia’s Supreme Court about whether he will spend further 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 following 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, functioning press as part of Indonesia’s future.

• READ MORE: Jail sentence for Indonesian reporter who covered corruption
• Other media freedom in Indonesia reports

Others, however, are waging a battle against independent media and freedom of speech, through prosecutions like Asrul’s and through the impending passage of a criminal code that smacks of authoritarianism. With Indonesia’s two-decade-old democratic path in real jeopardy, the next several months will be decisive.

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

After spending more than a month in jail as the police conducted investigations, Asrul was prosecuted under the country’s draconian Electronic Information and Transactions Law (ITE Law), which criminalises the electronic transmission of information that defames or affronts.

At the end of 2021, a court found Asrul guilty and sentenced him to three months in prison.

Police bypassed Press Council
While this would be egregious enough on its own, in Asrul’s case the police chose to bypass Indonesia’s Press Council.

The Press Council is an independent government body tasked with protecting journalists in press-related disputes. The police are supposed to coordinate with the Press Council to determine whether a case should be funnelled into the criminal justice system or resolved through mediation or other solutions outside of the courts.

But the police did not give the council a chance to settle the complaint against Asrul, sidestepping this critical institution. Equally worrying, the court that convicted Asrul stated that the police have the power to override the Press Council in a range of situations, including where individuals offended by news articles go straight to the police instead of the council.

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

This coming week, we will file an amicus brief requesting that the Supreme Court overturn Asrul’s conviction and ensure that the protections offered by Indonesia’s Press Council remain a reality for journalists throughout Indonesia.

TrialWatch monitors trials such as Asrul’s in more than 35 countries, seeking to overturn unjust convictions against journalists and marginalised individuals and to reform the laws used to target them.

The ITE Law is one such example. Since its enactment in 2008, the ITE Law has been a key tool in suppressing freedom of expression and press freedom in Indonesia, with prosecutions spiking in recent years.

81 people charged
During the first nine months of 2021, for example, at least 81 people were charged with violating the ITE Law, “most of them accused of defamation” — the provision under which Asrul was prosecuted. Those found guilty of defamation can face up to four years behind bars.

While the ITE Law has been a darling of government officials seeking to quash legitimate criticism, it has also been deployed by businesses and other powerful actors who simply do not like what someone has posted online.

TrialWatch recently monitored a trial in which a woman, Stella Monica, was prosecuted for Instagram complaints about acne treatment she received at a dermatology clinic. Monica was acquitted but the clinic aggressively pursued the case, subjecting her to almost two years of legal proceedings.

This playbook for stifling speech may soon receive a boost with the revision of Indonesia’s colonial-era criminal code. In many countries, the amendment of colonial laws has been a step forward, but Indonesia’s iteration is so regressive that when a draft was published in 2019 it triggered 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 potential jail sentence of up to three years for perceived insults to the president and vice-president, the draft code criminalises the dissemination of “incomplete” news and so-called “fake news”.

In neighbouring countries like Cambodia, we have seen fake news provisions deployed against those who criticise the authorities.

Attempts to hide developments
Just how troubling these developments are is clear from the Indonesian government’s attempts to hide them. The Deputy Law and Human Rights Minister in charge of the revision process had previously pledged that the legislature would vote on the code by August 17, Indonesia’s Independence Day.

He also stated that the authorities would not share the draft text with either civil society or the public because of the risk of disorder. After an outcry, however, the government published the draft in July and promised further consultations, still leaving civil society with scant time to deliberate and engage the government if the vote indeed takes place in the next few months.

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

The draft code falls squarely on the side of conservatives in Indonesia’s roiling cultural battles, threatening jail time for sex and co-habitation before marriage, which would also functionally criminalise LGBTQ+ relationships. Another provision swells the already expansive blasphemy law, extending it to criminalise comments made on social media.

Although the draft code reflects the reality that repressive forces are gaining ground, there is still hope that the authorities will side with those fighting for fundamental freedoms. The government has shown itself to be responsive not only to pressure from hardliners but also to pressure from pro-democracy forces.

The withdrawal 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 about overly broad enforcement of the ITE Law, President Widodo commissioned guidelines limiting its application — in particular against journalists.

The guidelines, which were introduced after Asrul’s case had already begun, explicitly state that in cases where a news outlet has published an article, then press regulations — not the ITE law — should apply. While enforcement has been shaky thus far, the guidelines demonstrate the power of public pressure and are an additional tool in the battle for press freedom.

Institutional safeguards
Other institutional safeguards are in place. Indonesia’s Press Council has a mandate that puts it on the same level as 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 Council’s role.

To show how significant the Press Council is we need only hop across the ocean, where press freedom advocates in Malaysia have been fighting to establish a similar mechanism for years, recognising its potential to stop the harassment of independent media.

The courts are also making positive noises. In the face of campaigns by government officials, religious conservatives and businesses to clamp down on speech, some judges have ruled in favour of human rights protections — from the acquittal of Monica for her dermatological troubles to a recent high-profile acquittal in a blasphemy prosecution.

What this means is that unlike in countries where the decks are stacked, with the legislature, judiciary and press co-opted by authoritarian powers, all is not lost in Indonesia. Civil society has proven that it can mobilise and that institutional levers can be pulled.

But this upcoming period will be crucial. Buffeted by competing winds, the Indonesian government will decide whether to move forward with the current version of the new criminal code. Actors at the local level, like police and prosecutors, will decide whether to enforce — or not enforce — rights-positive guidelines and laws.

The judiciary will consider cases with wide-ranging consequences for press freedom and freedom of speech, like that of Muhammad Asrul. And even if the criminal code is passed, it awaits a barrage of constitutional challenges, putting the judiciary in the spotlight.

Through its TrialWatch initiative, the Clooney Foundation for Justice will continue to monitor these courtroom battles and advocate for those unjustly targeted in criminal prosecutions. With key decisions forthcoming, the fate of Asrul and many others hang in the balance.

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