Civil liberties and tyrannical majorities

Civil liberties and tyrannical majorities

“Everyone has the right to advocate individually or collectively to advance her people, nation, and country… to express her thoughts and attitudes in accordance with her conscience… [and] to communicate and obtain information to develop her personal and social environment.”
—Article 28 of the Indonesian constitution (1945)[1]

JAKARTA, Indonesia — The back courtyard of the coffee shop in Salatiga, a city in central Java well-known for its religious tolerance, is shaded by bougainvillea interwoven through an arched trellis. Earthenwork fountains are strategically positioned to create a harmony of quietly burbling water. Cups of warm cappuccino brewed with strong Javanese beans fill the air with the serene scent of wood and flowers on this tranquil November afternoon.

Soon after sitting down with me, Hanung Triyoko breaks the bliss to confide that he is worried about his country. A lecturer of English education at the local State Islamic Institute, the 44-year-old father of two wears a mustache and, today, a look of despair. He says he didn’t feel comfortable talking with me on campus about a mass rally that occurred in the capital the week before because the issue has become hotter than the coffee we’ve been served, and highly divisive.

The rally occurred on November 4th. Tens of thousands of people took to the streets of Jakarta to call for the resignation of the governor, who they believed had committed blasphemy. In Hanung’s view, the true aim of the small but vocal contingent of hard-line Muslims was to remove the president, Joko Widodo, from power—and at least one of the organizing groups has made clear that it rejects the very idea of an Indonesia, and intends to establish an Islamic caliphate. Hanung is troubled by all this and that so many moderate voices have remained mute in the face of such extremism.

Hanung and I at his home wearing shirts featuring Indonesian presidents

Attempting to assuage his concerns, I suggest that Jokowi (the informal nickname for Indonesia’s seventh president) had the situation under control. He assigned 20,000 police officers to the rally and permitted it to carry on only until nightfall. I also point out that the people who took to the streets have a democratic right to assemble and speak their minds even if we don’t agree with what they have to say. The rallies, I argue, are a sign that Indonesia’s democracy is maturing.

But that is a hard case to make. The means of these groups may have been democratic, but their ends did not appear to be. For months, the leaders had taken advantage of every Friday sermon, media interview and chance they got to declare that only a Muslim can legitimately lead Muslim-majority Jakarta.

The demonstration’s ostensible target was Jakarta’s governor. A Chinese Christian, he had told a group of fisherman not to be deceived by the political use of the Qur’an, supplying the petard on which his enemies would later hoist him: Doctored video of the statement made it appear as though he were warning Muslims not to be fooled by their own holy book. It spread quickly through social media, becoming both the fodder for blasphemy charges against the governor and the catalyst for rallies that were touted as a defense of Islam. They culminated in citizens exercising their free-speech rights to call for incarceration or worse[2] for Basuki Tjahaja Purnama (commonly known as Ahok).

That is what has Hanung in a huff. He’s seen the undoctored video, doesn’t feel that Ahok’s statements were offensive and disagrees with the politicization of his faith. He’s heard my rebuttals but is concerned that I have not grasped the severity of the situation. Finally relenting, he joins me in the serenity of drinking coffee in this splendid setting.

But time has since proven Hanung’s concerns valid: A second mass demonstration in December draws 500,000 people to the streets for another “aksi damai,” or peace action—a bit of Indonesian doublespeak, given that the groups make increasingly clear that if Ahok doesn’t go to jail, violence will follow. Finally, they get what they want. In April, the governor loses the runoff election and by May, he is sentenced to two years in jail.

 

 

Some sources estimated that 500,000 people attended the December 2 rally (Credit: Abraham Arthemius)

 

We want justice. “#IslamAlwaysInOurHeart #TheQur’anIsOurHolyBook #IndonesiaOrDeath” Signs such as this blend nationalism and Islam in potentially problematic ways (Credit: Abraham Arthemius)

Hanung is in higher spirits when I meet him again in August. The president has taken the upper hand, enacting a law that gives him the authority to disband civic organizations he deems to be a threat to the Indonesian nation-state.

Again, I find myself in the curious position of defending the Muslim marchers. I express concern that Perppu, as the new law is called, gives the president too much power, enabling him to violate Indonesian citizens’ rights. Hanung’s patience with those groups and my pacifism is growing thinner.

“I support the Perppu because those radical Islamic groups pose a threat to Indonesia,” he tells me. “These people want to use their power to force their values on others, but their civil liberties have limits.”

It’s rare for Indonesia to make it into international news, but for the past year, Western media have actively decried the loss of the country’s famed tolerance at the hands of hard-line Muslims. Still, the groups calling for incarcerating a member of a double-minority did so peacefully and in compliance with the law. In response to that attempt to institute a tyranny of the majority, the president gave himself the power to disband one of the groups, and he may have sidestepped the constitution in the process. That has escaped coverage by international media, but we should be paying attention because in venturing beyond the limits of the country’s constitution, President Widodo may have set himself up for failure in a coming Constitutional Court case and presidential election in 2019.

The enactment of Perppu—Peraturan Pemerintahan Pengganti Undang-Undang, or the Government Regulation in Lieu of Laws—leaves those of us who support liberal democracy between an authoritarian rock and an ideological hard place.

Clear and present danger

President Widodo’s position isn’t enviable. When he was elected in 2014, his vice governor took control of the megalopolis of Jakarta, becoming only the second non-Muslim to hold that position since the country gained independence in 1945. The two men worked closely together both before and after the election. But when hard-line Muslim groups such as the Islamic Defenders Front (FPI) and the Islamic Liberation party of Indonesia (HTI, or Hizb ut-Tahrir Indonesia) began calling for Ahok’s indictment on blasphemy charges, the president had to be careful not to appear to intervene in the judicial process. He maintained a stoic silence about the situation for months.

So it made for great political theater when, during the second mass rally calling for “justice,” Jokowi exited the presidential palace, walked across the street to the national monument and took to the stage, sidelining the orators to issue remarks that were short, sweet and clearly politically calculated: “I have a lot of respect for all of you who have come out today. Thank you for all your prayers to save our nation. God is great, God is great, God is great. Thank you also for remaining orderly so this rally could be conducted well. God is great, God is great, God is great. Again, thank you, and have a safe trip back to your respective homes. Thank you. God bless you.”[3]

Many saw the president’s act as a masterful coup—he had co-opted the gathering, kept the peace and dispersed the crowd without acquiescing to organizers’ demands. But others argued his coded language subtly signaled solidarity with the Muslim majority. Most media coverage presented his handling of the situation in a positive light, foregoing critical analysis of the speech in an attempt to bring this episode of the nation’s history to a close and get people back to business as usual.

 

Jokowi prepares to address the crowd at the December 2 rally. Members of his entourage are wearing black 
peci (hats). Rally organizers are wearing white peci. Jokowi’s military escort wears blue berets
(Credit: Press Office of the Secretariat of the President of Indonesia)

Unfortunately, the page could not be turned so easily. The groups purporting to represent the Muslim majority delivered the gubernatorial election to Ahok’s rival on April 19th, and finally got what they were demanding when the governor was jailed on May 9th. Then they started seeking out other wedge issues, such as disputes about statues,[4] which have also been causing problems in America as of late, with which to marginalize minority groups.[5] Such ongoing attempts to divide the nation may have been what ultimately led Jokowi to pass Perppu.

Ten days later, on July 19th, just before announcing the dissolution of HTI, the cabinet official responsible for carrying out the order provided the state’s official justification for the act. “HTI has promoted values that contradict Pancasila [Indonesia’s five foundational principles] and the 1945 constitution,” said the coordinating minister for political, legal, and security affairs, Wiranto (who, like many Indonesians, has only one name). “The activities of the group have also collided with the public, and thus pose a threat to the unity of the republic.”

His declaration poses three problems. First, the choice of Wiranto to present the state’s case plays right into a narrative that Jokowi is strong-arming Muslim groups. A former commander of Indonesia’s military, Wiranto was indicted for war crimes by the United Nations in 2003. Human rights organizations including Amnesty international, Human Rights Watch, and ETAN vociferously contested his appointment by Jokowi just over a year ago.[6] At least one of those groups, Human Rights Watch, has already publicly condemned Jokowi for passing Perppu.[7]

Second, although the announcement states that the group’s activities have collided with the public, the members of the group are also members of the public. The constitution guarantees every citizen, and thus each individual member of HTI, the right to “advocate individually or collectively to advance her people, nation, and country” and “to express her thoughts and attitudes in accordance with her conscience.” Unless the goal was to cast HTI’s members into a philosophical space of abjection, Wiranto’s proclamation has no practical effect.

Third and most important, his statement implies that the state possesses enough evidence to warrant HTI’s dissolution. If so, why was no attempt made to accomplish that goal judicially? Had Jokowi brought the group to court, the organization and its members could have been put on trial for their declared opposition to Pancasila and Indonesian unity. As Hizb ut-Tahrir is open about its desire to create an Islamic caliphate, it would likely have lost in the Supreme Court as well as in the court of public opinion. That surely would have pleased Indonesians such as Hanung.

Instead, the president bypassed those courts by enacting a new law to disband a group that posed no immediate threat to the state. And therein lies the problem: according to Article 22 of the Indonesian constitution, the president can enact Perppu only if there is “kegentingan yang memaksa”—clear and present danger.

It can be argued that these groups pose an existential threat to the Indonesian state in the long term, but there isn’t much evidence to support the claim that they presented a clear and present danger in the immediate sense. The rush to authoritarianism may ultimately play right into the hands of hardliners.

Lawyering up

When I asked Nurul Mahmudah—a law school graduate currently pursuing an advanced degree in Melbourne—whether Perppu might be justified by the severity of threats Indonesia faces, she demurred. “Civic organizations have a right to freely assemble, so their dissolution should require the consideration of the court,” she says. “This is an important procedure, in my opinion, because constitutional rights should be protected in such a way that their curtailment requires the performance of checks and balances between the executive, legislative and judicial branches. In this case, Jokowi did not meet the constitutional requirement for ‘urgent need.’”

My conversation with Dr. Hafid Abbas, one of 12 members of Indonesia’s National Commission on Human Rights, made clear just how dire the situation could become. “Indonesia is a democratic nation, and barring an emergency situation, the president must follow due process,” he told me. “If HTI has broken the law, they should go through a legal process and be disbanded that way.”

I asked Abbas whether he felt there was enough evidence for that. He seemed reluctant to answer. I held him here, however, and rephrased my question: Was this a missed opportunity or a miscarriage of justice?

“I cannot answer… because that question is now moot,” he said. The time for serious consideration of the implications of enacting Perppu has passed, he indicated, and I suspect it passed without him or the other commissioners having received any notice. That is troubling.

After a brief pause, Abbas resolutely continued to his final point, revealing his thoughts about what is likely to come of all this: “Indonesia has human rights protections that are guaranteed by its constitution and backed by its governing authorities,” he said. “Since HTI’s human rights were not protected, this case could go to the Constitutional Court. Yustril (Ihza Mahendra), the former justice minister, has agreed to provide them legal representation. It is entirely possible that Jokowi will lose this case.”

Perppu: His own petard?

Both of my legal-minded friends find Perppu problematic, and neither of them are particularly sympathetic to HTI’s cause. But most Indonesians don’t support HTI’s cause either, and Indonesia’s courts have a reputation for wavering with public opinion. That could prove to be Jokowi’s saving grace.

But he is playing a dangerous game. Many say the protesting groups have already proved themselves capable of mobilizing veritable armies to the streets of Jakarta and instigating a blasphemy case against a sitting politician.

That case kept Ahok caught up in court for months of the campaign season and led to his subsequent incarceration. A Constitutional Court case against Jokowi would likely play out over the entire run-up to the 2019 presidential elections and significantly limit his ability to campaign throughout the country. And if Yustril manages reframe HTI as a victim of Jokowi the authoritarian in the court of public opinion, then deliver him a loss in the Constitutional Court, it could have disastrous consequences. If Jokowi’s attempt to disband the group fails in either of the courts, it could lead to his undoing at the ballot box.

The inconsistency in international reporting about the events leading up to the two cases represents a separate but at least equally important concern. Western news outlets were quick and correct to criticize hard-line Muslims when they pushed for an undemocratic end to Ahok’s governorship and freedom. But events that have led to the curtailment of civil liberties for those groups have gone nearly completely unreported by many of those same media. Their seeming deference to the president is problematic in the Indonesian context, but in the international context, the unwillingness or inability to speak up on behalf of hard-line Muslim groups is undermining our collective ability to understand the full scope of events.

It is difficult, dangerous even, to defend the free-speech rights of a tyrannical, privileged majority group such as Hizbut Tahrir Indonesia, which seeks to lay waste to the state. But as Noam Chomsky once put it, “if you don’t support the freedom of speech for those you despise the most, you don’t support it at all.” Just as the American Civil Liberties Union defended the right of the Ku Klux Klan to march in Skokie, Illinois in 1977, a vigorous defense of HTI’s rights to assembly and speech in the courts—and in the papers—would clearly demonstrate a commitment on the part of Indonesia and the larger world to constitutional democracy and civil liberty.

 


 

[1] All translations are my own and are as true to the original texts as the languages allow.

[2] http://www.aljazeera.com/news/2016/11/indonesia-thousands-rally-blasphemy-jakarta-161104130944560.html

[3] https://news.detik.com/berita/3360946/ini-pidato-lengkap-presiden-jokowi-di-panggung-aksi-2-desember

[4] http://time.com/4896672/indonesia-muslim-protest-statue/

[5] Protests by Muslim hardliners led to the cancellation of attempts to celebrate Christmas in Bandung, a satellite city of Jakarta. http://www.thejakartapost.com/news/2016/12/07/christmas-service-in-bandung-canceled-due-to-protest.html
The Christian university Duta Wacana took down billboards featuring a student wearing a hijab after protests by Muslim hardliners, who claim the hijab is a symbol of Islam. Muslim students attend the university. http://www.thejakartapost.com/news/2016/12/08/fui-forces-christian-university-to-drop-billboard-with-hijab-clad-student.html

[6] https://www.amnesty.org/en/latest/news/2016/07/gen-wiranto-is-a-threat-to-human-rights/
https://www.hrw.org/news/2016/07/28/indonesia-indicted-general-unfit-cabinet-post
http://www.etan.org/news/2016/07wiranto.htm

[7] https://international.sindonews.com/read/1220909/40/hrw-kutuk-perppu-pembubaran-ormas-1500100521