TheJakartaPost
Please Update your browser
Your browser is out of date, and may not be compatible with our website. A list of the most popular web browsers can be found below.
Just click on the icons to get to the download page.
Is our democracy in danger?
On Tuesday evening, presidential candidate Prabowo Subianto yet again claimed victory in the 2019 election, while blasting the government for purported corruption
Change Size
On Tuesday evening, presidential candidate Prabowo Subianto yet again claimed victory in the 2019 election, while blasting the government for purported corruption. In his closing speech at the National Symposium of 2019 Election Fraud, Prabowo described government treatment of the “people power” movement as a disaster for Indonesian democracy, and derided as groundless the allegations of treason that the government has levied against National Mandate Party (PAN) campaigner Eggi Sudjana.
Prabowo asserted that he will continue to mobilize people power against the “deception” infecting the democratization process. In the context of the legal assistance team proposed by Coordinating Political, Legal and Security Affairs Minister Wiranto, some 450,000 military and police personnel assigned to guard election facilities, the tension is palpable.
The current controversy raises two serious legal questions. First, is the people power movement, as the government has alleged, treasonous? Second, does the government response to the movement threaten to muzzle our democracy and contravene Indonesians’ human rights?
Put simply, is our democracy in danger? History has shown us numerous examples of democracies destroyed by coup d’état, or by direct revocation of democracy. Democracies in Argentina, Brazil and Nigeria all perished in this manner. But democracies may also decay at the hands of legitimate leaders who erode democratic freedoms, subverting the process that brought them to power. Such leaders may persecute critical voices, paralyze the freedom of press and exile opposition politicians.
Safeguards do exist. Most fundamentally, the law offers an essential bulwark against government assumption of power, limiting the potential for a democracy to descend into dictatorship. What then, are we to make of the charges of treason directed toward opposition politician Eggi? Is this a legitimate interpretation of Indonesian law?
The government has cited articles 104-107 of the Criminal Code (KUHP) as the basis for their accusation. These articles define treason roughly as efforts in aid of revolution. The Free Aceh Movement (GAM) of 1976-2005 fell readily under this definition.
However, a considerable discrepancy exists between the people power movement, with its vaguely threatening numbers and its limited goals in challenging the electoral decision, and GAM, a movement explicitly devoted to hostile action and regime change.
The people power movement has no stated intent to change the form of government, only to ensure that their favored candidate ascends into the existing structure. If this were revolution, every vote against an incumbent would render its caster a revolutionary. To define the people power movement as treason would be stretching the articles very thin.
But that is not to say that the actions of Prabowo’s supporters are legal. International law does not touch on treason, which remains the remit of national governments. However, the International Covenant on Civil and Political Rights, to which Indonesia is a party, is deeply concerned with maintaining free and fair elections.
General Comment 25 of the Covenant states that: “Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced”. Furthermore, “voters should be protected […] from any unlawful or arbitrary interference with the voting process”. While Indonesian elections law touches on interference during campaigning and polling, it has little to say on cases such as this, where the interference occurs after the election has been conducted, but before announcement.
Articles 104-107 are apparently being used here for this purpose, to supplant penal laws explicitly directed against such interference. While treason may be a tenuous charge, in the absence of laws against postelection interference, it may be the only alternative. Eggi’s actions, absent a more exactly appropriate framework, might well be subject to prosecution on these grounds.
However, General Comment 25 also urges strong caution in restricting the public freedom around elections, “including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose”.
These freedoms are also protected under Indonesian law. Law No. 9/1998 functions as the legal umbrella over freedom of public expression. This law safeguards speech that is not followed by any violent or unlawful conduct, or by racial or religious hatred. If the people power movement does not lead to these eventualities, it remains protected.
Unfortunately, the legal assistance team threatens to violate these protections by restricting the protestors’ freedoms of expression and opinion. This would be a diminution of democracy, and risks subverting the very freedoms the government exists to protect.
As long as the people power movement remains peaceful, the government’s claims to legitimacy would best be supported by tolerating such criticism and encouraging reconciliation.
____________________
Patrick Grene is a researcher at the Center for Constitutional Studies (PUSaKO) of Andalas University and a candidate for a doctoral degree in law (JD), William & Mary Law School, United States. Muhammad Ikhsan Alia is a senior researcher at PUSaKO and is a LLM candidate, University of Glasgow, Scotland.
