Alnoldy Bahari was prosecuted after his Facebook statuses were screen-captured and disseminated amongst locals. One of his status said “I witness that there is no God but Allah, If you have not seen Allah then you are a fake witness”, while the rests disputed statuses were about social critics against religious leaders. He and his wife are also victims of persecution. Assembly of Judges of Pandeglang District Court, West Java, presided by Judge Kony Hartanto has affirmed injustice by sentencing 5 (five) years imprisonment and 100 million rupiah fine to Alnoldy Bahari on 30 April 2018. Alnoldy was found guilty of hate speech under Article 45A Paragraph (2) juncto Article 28 Electronic Information and Transaction Law (ITE Law).
On the background of this case, the intolerant groups have threatens Alnoldy and his wife to be treated as Ahmadiyya in Cikeusik in 2013. Alnoldy and his wife’s house was damaged and they were forced to sign a declaration to leave Kampung Gadog for good.
We believe that the prosecution against Alnoldy was an attack against someone’s freedom of expression. This is aggravated by the law enforcement officials and judiciary who applies the law not based on the human rights principles but under the social pressure and intimidations. All of these have amounted to unfair trial against Alnoldy:
- The police keep investigating and inquiring the case although there has been a peace agreement between Alnoldy and the citizens of Kampung Gadog. This violates the Circular of Head of the Police on Hate Speech.
- The assembly of judges did not conduct proper notification for the first trial examination to both Alnoldy and his lawyers, from the Jakarta Legal Aid Institute.
- The public prosecutor did not give access to all the dossiers of Alnoldy’s case to his lawyers voluntarily. The lawyers need to pursue and debated and ended up having too little time left to prepare Alnoldy’s inadmissibility submission. This has caused Alnoldy missed the opportunity to submit inadmissibility, which decided by the judges even after knowing about such impediment posed by the prosecutor.
- The judgment delivered without including all the facts found during trial examinations whole fully. We found diversion and addition of facts other than what were revealed in court.
- Instead of using criminal law theory and doctrines, the assembly of judges used Indonesian dictionary as an analysis tool to prove that the elements of crime have been fulfilled in this case.
- The judges also ignore the facts raised by the defense lawyers on illegitimate confiscation of Alnoldy’s belongings by the Police and destruction of most of it while the items were under Police custody.
- The judgment did not include mitigating factors although Alnoldy had expressed his apology in front of the court and being cooperative in the whole process. Instead, the judges stated that public anxiety was one of the aggravating factors in punishing Alnoldy.
- The prosecutor did not examine all statuses submitted as evidences through forensic laboratorium, as mandated by the ITE Law on digital evidences. The most disputed statuses that became the basis of the Judges in deliberating were not examined by forensic laboratorium.
- The prosecutor’s failure to prove alternative crime as indicted was accepted by the assembly of judges.
- The presence of intolerant and vigilante groups inside courtroom and outside the court have put pressure and intimidation towards the judges. They also yelling threats. Many times their members conducted contempt of court yet these were ignored by the judges. Among the mobs, the Head of MUI (Islamic Ulema Council) Pandeglang, MUI (Islamic Ulema Council) Carita District, and FPI (Islamic Defenders Front) were present.
We believe that this case is a reflection of the growing intolerance that is adopted and affirmed by the law enforcement officials and the judiciary, who supposed to abide by the law based on human rights principles. This case is an obvious example of victim criminalisation. If the Police, the Attorney General Office, the Judiciary ignores this situation more and more injustice will occur and the public will questions more their authority and independence. We expect this unfair trial could be amended in the appeal process, and that all perpetrators responsible will not go unpunished.
Jakarta, 4 May 2018