Reading of the Defense Plea in the Criminalization Case of Fatia Maulidiyanti and Haris Azhar: Judges Must Articulate and Proclaim Justice!

Jakarta, November 27, 2023 – The criminalization case against Fatia Maulidiyanti (Coordinator of KontraS 2020-2023) and Haris Azhar (Co-Founder of Lokataru) has entered one of its final stages, namely the reading of the defense plea. In this session, the plea began with a personal defense statement by Haris Azhar entitled “Exiting the Labyrinth of Suppression by Authorities.”

In his personal defense plea, Haris Azhar stated that he does not regret the actions taken at all because he believes that hosting a podcast is a common practice, even by government institutions. According to Haris, there is nothing wrong or illegal in the podcast, as it serves as a means of disseminating information and communication to the public. Haris argues that prosecuting a podcast discussing research findings is not a dignified way to counter existing discoveries.

Haris Azhar also explained that the prosecution process against him and Fatia contains many regrettable aspects and various weaknesses. This is evident in the lack of compelling evidence presented by the prosecutor (JPU), including incomplete proof and the absence of several witnesses, including experts. Additionally, expert witnesses have shown reluctance in demonstrating their expertise.

Not stopping there, Haris also depicted the situation in Papua, where the exploitation of natural resources by the State has resulted in various forms of violence against the Papuan people. Given this situation, Haris stated that the advocacy practices carried out by human rights defenders and activists led him to interact with communities and indigenous people in Papua, making it difficult for him to deceive the real humanitarian conditions in Papua.

Furthermore, in his defense plea, Haris stated that what Luhut did represents the Indonesian President Joko Widodo. Dialogue efforts within the framework of a democratic state were not pursued; instead, there was criminalization. This is a form of repression, as the legal process is forced merely to satisfy desires, and the law is used contradictorily. At the end of the defense plea, Haris stated that this case is not a criminal act, and therefore, he should be released from all charges.

Next, the agenda continued with the reading of the defense plea by the Legal Advisor by the name “Prosecuting Crimes by Prosecuting Crime”. At the beginning of this plea, we read the philosophy of justice and the role of the court to remind the Panel of Judges to deliver a fair decision. We also read about the essence and function of the public prosecutor, who should remain neutral and fair in their prosecution work during the trial. Prosecutors should act based on the law, conscience, religious norms, morality, and uphold humanity. The prosecutor should also be independent according to the Prosecutor Law and is not allowed to engage in malicious prosecution or become a tool of power.

Furthermore, in the analysis of the trial facts, we assert that the Prosecutor has engaged in logical fallacies in analyzing all the facts presented during the trial. The presentation of facts should follow everything that has been proven in court. For example, in their indictment, the Prosecutor claimed that there were no human rights restrictions. However, referring to the statements of experts Herlambang Wiratraman and Rocky Gerung, who essentially stated that the right to freedom of expression falls under the classification of derogable rights. This means that the Prosecutor has misunderstood the essence of this unrestricted freedom, namely the right to think.

Moreover, the Prosecutor has also gone astray and miss argued that ANTI-SLAPP is only used for legal litigation that leads to the court. The Prosecutor added that Fatia and Haris’s case is not an Anti-SLAPP case because they violated the law and did not act in good faith. In this regard, we believe that the Prosecutor has overlooked the label of Human Rights Defenders in the field of environmental issues from the National Commission on Human Rights (Komnas HAM). However, Komnas HAM is a state institution with the authority to determine the status of Human Rights Defenders.

In this defense plea, we emphatically state that criticism of public officials is not an insult and/or defamation. The Prosecutor once again ignored various facts presented during the trial, such as the statement of expert Rocky Gerung, who mentioned that public officials are obligated to listen to criticism, appreciate it, and provide facilities in a civilized state. Public officials, as administrators in a democratic government, must accommodate criticism from the most absurd to the most useful and should not judge citizens’ criticism as either beneficial or not.

Similarly, the Prosecutor’s arrogant attitude undermines the credibility of our presented exculpatory witnesses and experts. Despite the trial facts, the Prosecutor deliberately forced answers, sometimes even drawing their own conclusions from the testimony of witnesses/experts. This often caused our objections because the Prosecutor consistently insisted on conclusions to be addressed by witnesses/experts. Therefore, through this plea, we declare that the Prosecutor’s allegations are unfounded and fabricated. Rather than blaming and attacking our presented witnesses-experts, the Prosecutor would be better off self-reflecting, improving their skills, and revisiting how to ask questions properly.

Throughout the trial, the Prosecutor did not examine all the witnesses and experts who were questioned during the investigation stage. This reflects a cherry-picking approach, a manipulative tactic employed by the Prosecutor, demonstrating their inability to prove all the criminal elements alleged.

We also address the issue of Luhut’s grandchild, who was never brought into the trial. Despite Luhut mentioning his grandchild several times, claiming distress due to existing digital footprints. The absence of Luhut’s grandchild further emphasizes the Prosecutor’s failure to prove the material loss element alleged by the complainant, Luhut Binsar Panjaitan.

In their indictment, the Prosecutor also casually argues the defendant’s motives, such as seeking personal gain, riding on Luhut’s fame, harboring resentment towards the complainant, and even soliciting shares. However, these accusations were never proven in court, making them potentially defamatory. The creation of the podcast was actually driven by good intentions, namely to voice the human rights and environmental situation in Papua and to advocate legitimately for the defense of the rights of the Papuan community, specifically, and the Indonesian nation in general, to avoid conflicts of interest, corruption, natural resource exploitation, and human rights violations.

Numerous trial facts were disregarded by the Prosecutor, including Supreme Court Regulation No. 1 of 2023 on Guidelines for Adjudicating Environmental Cases, the testimony of expert witnesses we presented, and the designation of Human Rights Defenders by the National Commission on Human Rights (Komnas HAM). Thus, the Prosecutor’s conduct lacked professionalism, rationality, clarity, and a legal basis for their accusations, in accordance with the rules of evidence.

Furthermore, in this plea, we affirm that Luhut is involved in mining business activities in Papua. Through his company, Toba Group, Luhut participated in business explorations in the Derewo Project, as evidenced by the minutes of a 2016 meeting between West Wits Mining and PT Tobacom Del Mandiri (a subsidiary of PT Toba Sejahtera), the ASX Announcement and Media Release titled “New Agreement Completed for Derewo,” and other supporting documents. Thus, it has been proven that PT Tobacom Del Mandiri, a subsidiary of PT Toba Sejahtera, collaborated with PT Madinah Qurrataain and West Wits Mining. It can be concluded that Luhut, as the largest shareholder in PT Toba Sejahtera, has been implicated in mining activities in Papua.

In the juridical analysis section of this plea, we elaborate on several points, such as the assertion that the statements of Fatia and Haris do not contain insult and/or defamation until the malicious prosecution indicators from the Prosecutor are met. This is because the Prosecutor has alleged without evidence, engaged in malicious framing of the defendants, lacked valid arguments, been inaccurate, manipulated trial facts, and interpreted the statements of Fatia and Haris differently to fit the Prosecutor’s case theory.

Subsequently, the trial concluded with the reading of the defense plea by Fatia Maulidiyanti. In her plea, Fatia titled it “All People (Not) Equal Above the Law” attempting to encapsulate the general situation regarding human rights in Indonesia, especially in Papua. In her plea, Fatia stated that Papua is a region with natural and mineral wealth that has garnered national and international attention. Unfortunately, amidst this wealth, structural poverty, armed conflicts, and environmental degradation persist and are the consequences of the state’s investment ambitions.

Furthermore, Fatia explained that violence has become a constant in Papua’s life, with extrajudicial killings, torture, arbitrary arrests, hunger, land confiscation, and prolonged neglect of internal displacement. Fatia revealed that the numerous human rights violations in Papua are a result of military operations carried out without evaluation or oversight.

Fatia’s plea also addresses the accusations made by the Prosecutor, who claimed that Fatia conducted an initial briefing and prepared questions and answers with Haris Azhar dismissing the claim that the interview was fabricated, Fatia considers the accusations made by the Prosecutor as demeaning to her competence as a researcher and human rights activist. Furthermore, Fatia states that the allegations of public officials’ involvement, as presented in the research and podcast content, do not constitute defamation. The accusation that the content was created to tarnish the reputation of a public official is a misguided claim.

In her plea, Fatia also addresses the Prosecutor’s statements that seem to demean the dignity of the legal assistance and advocate professions. Fatia emphasizes that the Advocacy Team for Democracy (Tim Advokasi Untuk Demokrasi) is a group of legal advocates who are working to defend her and Haris without receiving any payment, voluntarily dedicating their time and energy. They have a competent track record and are consistently providing legal assistance to oppressed communities. TAUD has also produced several works that Fatia deems helpful to the community.

Furthermore, Fatia touches upon the topic of the declining state of democracy in the era of President Joko Widodo. Fatia believes that President Jokowi has given a boost to the strengthening of oligarchy, marked by development more oriented towards the interests of businesspeople. The government’s eagerness to build with the support of foreign investment has, in fact, given rise to various conflicts and new crises, as seen in Papua, Sulawesi, North Halmahera, Rempang, Banyuwangi, Wadas, and many other regions in Indonesia.

Fatia also addresses the challenges faced by Human Rights Defenders, who are confronted with various forms of obstacles. The criminalization efforts against people fighting for their rights clearly contradict Law No. 32 of 2009. In addition, Fatia emphasizes the role of Women Human Rights Defenders. The legal prosecution she is currently facing is nothing more than a showcase of the elites’ arrogance using legal means. Fatia highlights that the law has become a tool and weapon for ruling elites to shield themselves from criticism and demonstrate their arrogance above the law. One sorrowful aspect for her is that this case has not only resulted in the loss of study and job opportunities but has also deprived her of the chance to care for her parents in their final moments.

In the closing part of her plea, Fatia states that she does not regret what she and Haris Azhar have done. The content presented on YouTube was solely for the public interest, providing facts to the public for enforcement by law enforcement agencies. Fatia urges the state to follow up on various findings from the community, especially from affected individuals who have become victims of human rights violations. She hopes that this trial can contribute to setting a precedent for justice and prove to the international community that Indonesia, as the largest democracy in Southeast Asia, can still be an example.

Based on these grounds, we request the panel of judges overseeing and adjudicating this case to:

1. Accept the defense plea in its entirety;
2. Declare the rejection of the charges and demands from the Prosecutor;

3. State that all charges against Fatia and Haris are not acceptable;

4. Declare that Fatia and Haris have not been proven legitimately and convincingly to have committed criminal acts as regulated by the ITE Law;

5. Acquit Fatia and Haris from all charges;

6. Restore the rights of Fatia and Haris in their capabilities, positions, and dignity;

7. Impose the case costs on the state according to applicable law.

Contact persons:

Asfinawati (Advocacy Team for Democracy)
Nurkholis Hidayat (Advocacy Team for Democracy)
Arif Maulana (Advocacy Team for Democracy)
Muhammad Isnur (Advocacy Team for Democracy)
Andi Muhammad Rezaldy (Advocacy Team for Democracy)