Dear friends,

The Asian Human Rights Commission (AHRC) has received information regarding the arrest and trial of Alexander Aan, a 31-year-old civil servant in Padang, West Sumatra, who was arrested for posting a status on Facebook questioning the existence of god and administering a Facebook group called Ateis Minang (Minang Atheists). He is also being charged for uploading a note and comic depicting and insulting Prophet Muhammad. He has been indicted with three charges, including for disseminating religious hatred on the internet, which might lead to six-years imprisonment.



CASE NARRATIVE:

According to LBH Padang (Padang Legal Aid Institute), a local NGO part of the Indonesian Legal Aid Foundation (YLBHI), on 18 January 2012 some residents of Pulau Punjung came to Alex’s office in Dharmasraya, Padang, after learning that Alex had posted a note entitled ‘The Prophet Muhammad was attracted to his own daughter-in-law’ and a comic entitled ‘The Prophet Muhammad had been sleeping with his wife’s maid.’ The local newspaper reported that Alex was close to being attacked by the mob, which was angry as they considered his posts to have insulted Islam. The police came right before Alex was attacked and he was later brought by the police to the Pulau Punjung sub-district police station for his own safety.

At the police station, Alex told the police that he is an atheist and that he is a member of a Facebook group named Ateis Minang. As one of his Facebook status updates, Alex wrote, ‘if you believe in god, then please show him to me.’

His trial has commenced and he is indicted on three charges: disseminating information aimed at inflicting religious hatred (as prohibited in Article 28 (2) of the Electronic Information and Transaction (ITE) Law), religious blasphemy (under Article 156a (a) of the Indonesian Penal Code, KUHP) and calling for others to embrace atheism (under Article 156a (b) of the KUHP). According to the Prosecutor’s Letter of Indictment, Alex’s posts on Facebook are against Islam and had insulted the religion. Alex’s posts have also caused outcry in the community whose members are mostly Muslim. Moreover, the prosecutor argued that Alex’s posts may initiate hatred towards Islam in an individual or a group of individuals.

ADDITIONAL INFORMATION:

Indonesia is a state party to the International Covenant on Civil and Political Rights (ICCPR), article 19 paragraph (2) of which guarantees the right to freedom of expression. Although freedom of expression is not an absolute right, according to paragraph (3) of the article, it can be restricted only if the limitation is provided by law and necessary ‘for respect of the rights or reputations of others and for the protection of national security or of public order (ordre public), or of public health or morals.’

In this case, whilst it is obvious that there is no public health or national security issues involved, it might be possible to argue that public order or public moral issues are at stake. Yet the Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPRestablishes that ‘public order’ is at threat when the rules that ensure the functioning of society are violated. Thereby, what Alex has done does not pose a threat to public order because the society still functions as it usually does; his actions cannot therefore be prohibited or restricted based on this reason.

Neither can it be claimed that Alex’s posts have violated public morals, as according to various human rights interpretive documents, ‘morals’ should not be based merely on principles deriving exclusively from a single tradition. Under Islam’s standard of morals, Alex’s posts on Facebook might amount to a threat to public morals, but this might not be the case under the standards of other religions’ or philosophies.

Bearing in mind that the ‘rights or reputations of others’ in article 19 (3) of the ICCPR refers only to individuals and not to abstract concepts such as religion or belief, it can be concluded that no one’s rights or reputations are at stake in this case. This view has been upheld by the 2008 Joint Declaration on Defamation of Religions, And Anti-Terrorism and Anti-Extremist Legislation (Joint Declaration) issued by the special representatives of various regional and international human rights bodies.

Another permissible limitation on the freedom of expression is when the exercise of such right constitutes propaganda for war or any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence as enshrined in article 20 of the ICCPR. Again, Alex’s posts do not amount to any of these. His note and comic merely tell a story on the sexual relationship between the Prophet Muhammad and his daughter-in-law and his wife’s maid. These may constitute as insults, and may contain information not in accordance with the Quran, but they do not encourage anyone to discriminate, commit violence, or hostility against Islam or Muslims. If anything, Alex’s posts should only be categorised as religious defamation, the concept of which however, is itself against human rights principles.

As the Joint Declaration puts it, ‘restrictions on freedom of expression should be limited in scope to the prediction of overriding individual rights and social interests, and should never be used to protect particular institutions, or abstract notions, concepts or beliefs, including religious ones.’

The right to freedom of religion cannot be used to justify the prohibition of religious defamation either. The right to freedom of religion does not include the right to protect religious feelings; it only covers the right to have, adopt and manifest one’s religion.

It is also essential to emphasise that freedom of religion does not simply protect theistic beliefs but also non-theistic and atheistic beliefs as well as the right not to profess any religion or belief, as stipulated in the UN Human Rights Committee’s General Comment No. 22. Indonesia, therefore, has the obligation to ensure that the atheists within its territory and jurisdiction can also exercise their belief as freely as other members in the society following particular religions.

SUGGESTED ACTION:

Please write to the listed authorities below urging them to stop the legal proceeding against Alexander Aan. More importantly, please request them to repeal any laws which are contradictory with Indonesia’s international obligations on freedom of expression and freedom of religion.

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