Dec 1, 2023
An opinion piece by Yogi Bratajaya, ICJ Legal Consultant and Daron Tan, ICJ Associate International Legal Adviser, Asia and the Pacific Programme, published on The Jakarta Post on 27 November 2023.
Over the past two decades, state authorities have tightened their grip on online freedom of expression in the country by enacting and applying overbroad laws purportedly aimed at legitimate objectives such as combating disinformation, but with the effect of arbitrarily censoring expression and targeting journalists and human rights defenders.
Among these are criminal provisions against intentional dissemination of harmful “false information”, i.e. disinformation. One such provision is Article 14(1) of Law No. 1/1946 on criminal law regulations, which criminalizes the act of “intentionally broadcasting false news or statements that incite chaos in society”, which may result in 10 years’ imprisonment.
Civil society organizations have rightly pointed out that the 1946 law and other disinformation laws inherited from the colonial justice system should not be applied in current times. In July 2023, a petition was filed with the Constitutional Court by several human rights organizations claiming that the disinformation provisions in Law No. 1/1946 contravene the state’s obligation to protect the right to freedom of expression and information.
Disinformation laws have frequently been enforced to restrict freedom of expression. Muhammad Asrul, a journalist, was charged in 2021 under Article 14(1) of Law No. 1/1946 for a piece detailing the alleged involvement of the son of the Palopo mayor in a corruption scandal. Human rights defenders Haris Azhar and Fatia Maulidiyanti are standing trial on charges relating to the criminal disinformation provisions of the same law in relation to a YouTube video discussing allegations of a conflict of interest by the Coordinating Maritime and Investment Affairs Minister Luhut Pandjaitan.
As a state party to the International Covenant on Civil and Political Rights (ICCPR), Indonesia is obliged to respect and ensure the right to freedom of expression and information, as guaranteed under Article 19 of the ICCPR. As affirmed by the United Nations Human Rights Committee, the monitoring body for the ICCPR, this right forms the “foundation” of a free society in ensuring the “transparency and accountability” crucial to the promotion and protection of many other rights.
Any restriction of this right must be based on a law that is precisely worded. Further, it must be necessary for and be the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate are ensuring respect for the rights or reputations of others; or for the protection of national security, public order, public health or morals.
The criminal disinformation provisions of Law No. 1/1946 by no means meet the above standards. The use of the term “false news or statements” in the criminal disinformation provisions of the law is vague, overbroad and imprecise, as the lines between facts and opinions, and truth and falsehoods can be notoriously difficult to draw.
Further, the authorities should not rely on an overbroad definition of upholding public order to justify restrictions of freedom of expression. There appears to be nothing in the law or in any correlative pronouncements to suggest whether or how “chaos in society” relates to any of the bases in the closed list of legitimate purposes under Article 19 of the ICCPR. The failure to comply with these requirements for restriction may result in the arbitrary sanctioning of legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.
Particular care must be taken concerning the application of criminal law, as it is among the harshest of tools at the disposal of the state to exert control over individuals. Criminal law may only proscribe conduct that inflicts or threatens substantial harm on the human rights of others or to certain fundamental public interests.
It is unlikely that “chaos in society” would meet the threshold of “substantial harm” needed to justify a criminal law response, in part due to the lack of clarity on what “chaos in society” actually entails. The potential of such disproportionate criminal penalties has a chilling effect on the free communication of ideas, opinions or information, as individuals will self-censor to protect themselves.
We, the International Commission of Jurists (ICJ), have documented how states across Southeast Asia have purported to combat disinformation with laws that fail to conform to international human rights law and standards on the right to freedom of expression and information.
These laws are emblematic of the immense challenges of responding to disinformation using coercive legal measures, especially if they focus on the blunt instrument of criminalization. Generally, these laws targeting disinformation have been used to suppress or discourage the expression of contentious and critical views on matters of public interest.
For instance, section 14 of Thailand’s Computer-related Crimes Act B.E. 2560 (CCA) criminalizes “false computer data” that is “likely to cause damage to the public”, or “the protection of national security, public safety […] or cause panic to the public”, with these crimes being punishable with up to five years’ imprisonment, a fine of up to 100,000 Baht (about US$3,000), or both. Similarly, Section 7 of Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 criminalizes the spreading of a “false statement of fact knowing it is false, and knowing it will or is likely to harm the public interest”, which may result in five years’ imprisonment, a fine of up to S$50,000 (about US$35,000), or both.
This worrying trend must be reversed, and Indonesia should thoroughly review its laws criminalizing disinformation, with a view to amending or repealing these provisions in line with its human rights obligations. While Law No. 1/1946 will no longer be applicable with the entry into force of the revised Criminal Code in January 2026, disinformation continues to be criminalized, including under articles 263 and 264 of the new Criminal Code.
The ICJ recognizes the complexities and challenges of responding to the spread of disinformation, including in online spaces.
When disinformation threatens human rights, states have a duty to take appropriate steps, grounded in human rights law, to address serious harms.
The crafting and use of vague and overbroad criminal laws, such as Article 14(1) of Law No. 1/1946, to sanction disinformation and undermine freedom of expression is rarely the answer. While certain forms of disinformation intended to cause serious harm may warrant a legal response, civil and administrative measures, rather than criminal law, will generally be appropriate where the disinformation does not involve incitement to violence. These legal responses must comply strictly with the human rights legal standards, and guard against harms that are limited and necessary to meet a legitimate purpose identified under Article 19 of the ICCPR.
More broadly, promoting and protecting, rather than limiting, human rights can serve as a means of achieving the kind of objectives that this legislation is purported to be aimed at. As emphasized by the UN Special Rapporteur on freedom of expression, it is through protecting and strengthening freedom of expression, improving digital literacy and supporting the important work of a free and independent media and civil society, that disinformation can be more effectively countered.
First published on The Jakarta Post here.
Nov 30, 2023 | Events, News
On 29 November 2023, the ICJ co-hosted a dialogue among Thai lawyers, academics, and Santiago A. Canton, Secretary General of the ICJ to exchange best practices from Latin America, specifically focusing on insights from the Inter-American Court of Human Rights and domestic courts in the region – to address ongoing challenges in litigating cases involving suspected enforced disappearances within Thai courts.
The Dialogue involved challenges encountered in litigating cases of enforced disappearances, particularly in terms of accessing, collecting, and admitting evidence within Thai courts. These challenges are notably complex, especially when the crimes have occurred beyond Thailand’s borders.
Additionally, participants discussed the difficulties related to establishing the responsibility of individuals for these serious crimes and how courts have handled evidence submitted in previous enforced disappearance cases. This included instances where evidence, such as telecommunications, as well as various forensic evidence like biological evidence and DNA evidence, was dismissed, and the failure to identify the perpetrator in cases where the victims’ bodies or remains could not be located.
“The crime of enforced disappearance completely eradicates any trace of the victim, with no acknowledgment by the authorities and no effective investigation. The requirement to locate the disappeared individuals’ bodies and remains contradicts the very nature of the crime of enforced disappearance,” said Santiago A. Canton, Secretary General of the ICJ.
While highlighting that the criteria for evaluating evidence within the Inter-American Court of Human Rights (IACtHR) are less formal compared to domestic criminal legal systems, Canton noted IACtHR’s jurisprudence relevant to the admissibility of circumstantial and indicative evidence, which was particularly instructive as enforced disappearances typically involve deliberate attempts by state officials to destroy direct evidence, aimed at securing impunity.
“The standard of proof in the Inter-American Court of Human Rights allows lawyers, under certain circumstances, to only establish a demonstrable ‘practice’ of enforced disappearances at the time of a specific case. When combined with circumstantial evidence, this can result in a judicial presumption of enforced disappearance,” said Canton.
Participants also discussed the ‘continuous nature’ of enforced disappearance crimes, which are recognized under Thai law and enable cases from the past, where the fate and whereabouts of victims remained unknown, to be prosecutable before the court, notwithstanding the fundamental principle of non-retroactivity.
Closing remarks by Angkhana Neelapaijit, a Member of the UN Working Group on Enforced or Involuntary Disappearances, whose husband Somchai Neelapaijit was a victim of enforced disappearance, detailed the role of the Working Group and the steps taken globally to address the crime.
Background
More than 20 Thai experts, lawyers, and academics, who represent or have experience researching cases of enforced disappearances in Thailand, participated in the discussion.
Thailand’s Act on Prevention and Suppression of Torture and Enforced Disappearance became effective in February 2023. However, its implementation has been slow. The majority of cases involving suspected torture, ill-treatment, and enforced disappearances are still in the investigation phase, and not yet moved into the adjudication phase. Limited information about its progress has been made available to the public.
Prior to the enactment of this new law, only two cases of apparent enforced disappearances reached Thai courts: the case of prominent Muslim lawyer Somchai Neelapaijit and Karen activist Pholachi ‘Billy’ Rakchongcharoen. Unfortunately, these cases concluded with limited success, mainly due to challenges surrounding the evidence submitted to the court.
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: a report on the criminal trial and investigation of the enforced disappearance of the Thai human rights lawyer, Somchai Neelapaichit
Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand
Nov 30, 2023 | Advocacy, Analysis briefs, News
The International Commission of Jurists (ICJ), in an amicus curiae brief submitted today, has requested the East Jakarta District Court to give effect to Indonesia’s international legal obligations concerning freedom of expression and information in their adjudication of a case concerning criminal charges against two human rights defenders, Haris Azhar and Fatia Maulidiyanti.
Nov 24, 2023 | Events, News
“The law governing the development of Thailand’s Eastern Economic Corridor (EEC) must be evaluated and revised to address concerns raised by local communities, and align with Thailand’s international human rights obligations,” concluded participants at a dialogue hosted by the International Commission of Jurists (ICJ), Land Watch Thai, EEC Watch, ENLAW Thai Foundation, and Thai Public Broadcasting Service (Thai PBS) in Bangkok, on 22 November 2023.
Participants shared recommendations aimed at improving the Eastern Special Development Zone Act B.E. 2561 (2018) (‘EEC Act’), which governs the operation of the EEC, to better serve the rights and interests of persons in affected communities. These suggestions will be compiled by the organizers and submitted as part of the official consultation process during the 2024 evaluation by the Office of the Eastern Special Development Zone Policy Committee (‘EEC Office’).
The EEC is a special economic zone in Thailand being developed in the eastern coastal provinces of Rayong, Chonburi, and Chachoengsao, along the Gulf of Thailand. Its objective is to promote investment in next-generation industries utilizing innovation and high technology.
“The EEC Act, however lofty are its stated aim, fails to incorporate adequate protection of human rights. While the EEC Act nominally acknowledges international human rights standards such as the United Nations Guiding Principles on Business and Human Rights’ protect, respect, and remedy framework, as well as the principle of promoting and protecting human rights in policy preparation, it fails to provide for adequate means to ensure implementation of these and other human rights standards,” said Sanhawan Srisod, ICJ’s Legal Adviser.
“According to Thai law, the evaluation must achieve goals that include aligning the law with Thailand’s international obligations under international law. Therefore, the EEC Office cannot complete the evaluation process without thoroughly addressing current gaps in compliance,” added Srisod.
The ICJ recommendations presented include the need to incorporate safeguards against forced eviction, in accordance with international human rights law, and to recognize the social, cultural, spiritual, economic, environmental, and political value of land for communities, with special emphasis on the significance for tenant farmers and small-scale food producers. Responsible land-based investments and implementing human rights due diligence are also critical elements.
A survey conducted before the dialogue with 44 affected individuals in Chonburi and Rayong provinces revealed a pattern of practices that fail to comply with Thailand’s international human rights obligations. They include:
- Lack of adequate participation of residents in the consultation process of the EEC Act.
- Absence of representation of locally affected individuals/communities in the Committee overseeing the EEC, primarily composed of governmental authorities and representatives from business sectors.
- The EEC Committee and Office hold overly broad powers without adequate checks and balances.
- The absence of effective grievance and compliance mechanisms within the EEC Office.
- Disregard for the impact of activities on local livelihoods during policy implementation.
- Ineffectiveness and inadequacy of remedies provided for individuals affected by EEC operations.
Participants suggested amending the EEC Act to address these concerns and ensure real participation, inclusiveness, adequate livelihood, a healthy environment, effective remedies, and other human rights of communities in the area.
Additionally, it addressed ongoing litigation initiated by communities challenging town planning within the EEC, specifically challenging the re-designation of agricultural, natural, and environmental reserved zones to industrial zones, which is currently pending before the Central Administrative Court.
Background
The participants comprised 30 affected individuals living in the areas of the EEC and civil society actors. This is the second dialogue following the initial one in June 2023, addressing the same topic.
According to the Act on Legislative Drafting and Evaluation of Law B.E. 2562 (2019), all Thai laws must undergo outcome evaluation at least every five years.
Speakers at the dialogue included:
- Chanchao Chaiyanukit, Former Permanent Secretary of the Ministry of Justice
- Pornpana Kuaycharoen, Land Watch Thai
- Sanhawan Srisod, ICJ
- Saowaruj Rattanakhamfu, Thailand Development Research Institute (TDRI)
- Somnuck Jongmeewasin, EEC Watch
- Sondhi Kodchawat, Environmental Researcher
- Sumitchai Hattasan, Center for Protection and Revival of Local Community Rights
- Supaporn Malailoy, ENLAWThai Foundation
- Sutthikiat Kodchaso, ENLAWThai Foundation
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: laws governing development of Eastern Economic Corridor and Special Economic Zones fail to adequately protect human rights – ICJ report
Nov 16, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) strongly condemns the Government of Pakistan’s decision to expel over 1.4 million Afghan nationals, including unregistered refugees, forcibly removing them to a country where many, especially women and girls, have a well-founded fear of persecution. The organization is deeply concerned for the safety and well-being of people who have been left with no choice but to flee under threats of arrest or deportation, as cases of arbitrary arrests and detention, and instances of ill-treatment, are reported.
“The forcible removal of Afghans is particularly egregious considering the ongoing humanitarian crises in Afghanistan and the current political climate following the Taliban takeover. Returning anyone there, especially women and girls, is fraught with risks. The expulsion of refugees and asylum seekers violates the principle of non-refoulement under international law, which prohibits the forcible removal of anyone to a country or place where they would have a well-founded fear of persecution, such as a real risk of being tortured or otherwise ill-treated or other serious human rights violations”, said Melissa Upreti, ICJ Asia Director.
Estimates indicate that there are over 1.4 million undocumented Afghans in Pakistan, in addition to some 1.3 million registered Afghan refugees. On 3 October 2023, the Government of Pakistan announced its plans to repatriate “illegal foreigners.” This was followed by a circular stating that Afghan Citizen Cardholders and those with Proof of Registration would be exempted. The deadline for Afghan nationals to leave Pakistan was 1 November, and has recently been extended to 31 December 2023, following significant international pressure. However, there have been reports of these exemptions not being applied and Afghans facing increasing harassment and pressure from local authorities.
UN agencies have called attention to the possibility of a serious escalation in human rights violations resulting from the separation of families and deportation of minors as the Pakistani authorities implement their plans. Since August 2021, the UN High Commissioner for Refugees has urged States not to return Afghan nationals to Afghanistan given that the country continues to be affected by recurrent conflict, instability and climate-induced disasters.
The ICJ and its partners have documented detailed evidence of gender-based persecution of women and girls in Afghanistan, as a direct result of the mounting draconian restrictions on their human rights and freedoms since the Taliban takeover in August 2021, in a joint report released earlier this year with Amnesty International. In light of the gravity and systematic nature of the restrictions and prohibitions that women and girls face in Afghanistan, the two human rights organizations recommended that all Afghan women and girls outside Afghanistan should be considered prima facie refugees and granted international protection.
“There is no evidence of a change in the de facto authority’s mode of governance, which centres on the oppression of women and girls and severe deprivation of their fundamental rights. If anything, there is evidence that the situation for women and girls in Afghanistan has become worse. Expelling Afghan nationals from Pakistan, especially women and girls, along with their families and forcing them back to Afghanistan puts them at a real risk of persecution or other forms of serious harm for which no legal recourse is available in Afghanistan,” added Upreti.
Citing concerns about a breach of international law obligations by Pakistan, a number of UN Special Rapporteurs have said in a joint letter that, “the lack of domestic asylum laws and procedures does not absolve States of their obligations to uphold the principles of non-refoulement under international human rights and customary law.”
Pakistan’s National Commission for Human Rights (NCHR) has urged the Government to refrain from conducting the deportations and called for adherence to relevant provisions in national and international law pertaining to refugees.
Thousands of Afghans have already crossed the border and with the recent postponement of the deadline to leave the county, the fate of over a million Afghans hangs in the balance. The ICJ calls on the Government of Pakistan to immediately:
- Rescind the expulsion order, cease further deportations and harassment of Afghans and comply instead with its international law obligations,
- Create pathways for women, girls and their families who have been forced to leave under the order to safely return.
- Consult with civil society, members of the Afghan community living in Pakistan, the NCHR, and relevant international organizations in the development of appropriate policies.
Contact:
Raquel Saavedra, ICJ Legal Adviser, e: raquel.saavedra@icj.org
