When free speech becomes an act of sedition

Meidyatama Suryodiningrat, The Jakarta Post, Jakarta

We frequently shake our heads in frustration at the misconduct and profiteering of public officials. But the conviction of a university student in Bali for insulting the president -- burning a picture of Susilo Bambang Yudhoyono to protest the planned fuel price hikes -- makes this writer want to hide his head in shame over the state of our befuddled democracy.

It is an indictment that our new democracy remains unable to guarantee the protection of citizens' civil liberties.

Incarceration for political dissent was ridiculously common in the New Order era. Initially one would have thought it ludicrous for such practices to persist under Megawati Soekarnoputri -- the fallen lady saint of democratic struggle -- and Susilo -- Indonesia's first directly elected president.

But Friday's six-month sentencing of I Wayan "Gendo" Suardana was consistent with a worrying trend of arrests or convictions against presidents, even during a legitimate political rally.

The now infamous articles 134, 136, 137 and 154 of the Criminal Code, which criminalize expressions of disrespect to the government, have been used to detain protesters almost as frequently in the first seven years of reformasi as they were to incarcerate dissidents in the last seven years of Soeharto's rule.

In March, three students were arrested for allegedly defacing photos of the President in another fuel price hike protest in Jakarta. During Megawati's presidency numerous students were also detained for tarnishing her image in protest rallies.

To his credit, President Susilo has expressed openness to criticism and public protests. Unfortunately, in no way has he discouraged the overzealous enforcement of these archaic provisions. The President should not intervene in the judiciary's conduct, but a simple call for prudence to police and prosecutors would go a long way to instilling respect for one of the primary human rights: Freedom of expression.

Individuals should not be allowed to run amok insulting and using abusive language against one another. That is libel.

But men of rank in public office are held to higher scrutiny. The courts refused to consider that expressions of discontent against public officials, no matter how rude, are not personal attacks in nature and hence cannot be considered libel, except when it relates to physical vulgarity in public.

The attack by the students are not directed at the individual per se -- Megawati or Susilo -- but the policy and institution the person represents which is wholly accountable to the public.

The lingering danger is that present laws also criminalize the dissemination of any material considered insulting to the President.

Hence a latitude of legally condoned oppressive measures is available for exploitation should a regime turn more repressive. While the letter of the law was faithfully carried out, it is questionable whether the intent of the law was to simply jail a few rude protesters.

It is more likely that the articles embodied the intent of serving as parameters against seditious speech aimed at inciting action to illegally overthrow a government.

The United States Supreme Court in its history of deliberations on First Amendment issues often wrestled with the boundaries of political free speech. One noteworthy principle it adopted in its consideration of such issues is whether the words used bring about substantive danger to the government or society.

Applied here, all charges of insulting the President brought to court in recent years clearly posed no threat to the survival of the government. The burning of a presidential effigy does not equate to intent for insurrection.

The claim that police, prosecutors and judges are simply applying the letter of the law shows a lack of appreciation of civil liberties and the preponderance of a New Order repressive mindset.

We are learning an important lesson in this case: Not to equate democratic procedures with freedom.

Democracy provides for the peaceful change of a regime through elections. But voting is just one aspect of liberty. In due course, what matters most is not how the ruler is selected, but the extent of powers he/she has once in office.

The gauge of Indonesia's democracy is the level of respect and freedom it ultimately provides its society. One of those freedoms is to dissent and air opinions without fear. Opinions which are respected, approved, popular or contemptible.

To quote Charles P. Flynn's in his book Insults and Society: "Insults provide a check to those in power who may be tempted to think of themselves in grandiose terms, above the rest of humanity and hence not subject to insults".