Draft Criminal Code Revisions a Threat to Democracy

Previously revoked stipulations on defaming the President and Vice President as well as the government have been reintroduced.

Kompas/Wisnu Widiantoro

Chairman of the Constitutional Court (MK) Arief Hidayat (center) presides over a panel of judges in a decision-making sesson on the judicial review of article on treason of the Criminal Code at the MK building, Jakarta, Wednesday (31/1).

JAKARTA, KOMPAS — Several stipulations the Constitutional Court had previously declared unconstitutional have been reintroduced in draft revisions to the Criminal Code being deliberated by the House of Representatives and the government. The revisions go against the state system and threaten democracy, as well as freedom of expression.

Based on Kompas’ observations on Thursday (1/2), a stipulation that has been reintroduced relates to defaming the president, vice president and government.

In the Jan. 10, 2018 version of the draft, the stipulation on defamation can be found in articles 262-264. The stipulation is slightly different from those found in articles 134, 136 and 137 of the Criminal Code that had been revoked by the Constitutional Court in 2006.

The previously revoked Article 134 of the Criminal Code revoked states, “Intentionally defaming the President or Vice President is punishable by a maximum six years’ imprisonment or a Rp 4,500 fine.”

Article 262 of the draft says, “Anyone launching personal attacks against the President or Vice President, which is not part of the heavy crime, is punishable by maximum nine years’ imprisonment”.

The Constitutional Court (MK) revoked the defamation article because the stipulation is seen as negating the principle of equality before the law, curbing freedom of expression, freedom of information and principle of justice. In its ruling, the MK stated that the draft Criminal Code revisions must not consist of articles containing stipulations similar to those that had been revoked.

In 2007, the MK also revoked stipulations on defaming the government, namely articles 107, 154, 155, 160, 161, 207 and 208. The reasoning was similar to the revocation of articles on defaming the President. The articles were deemed as hampering freedom of expression.

Nevertheless, the articles on defaming the President or Vice President, in the draft revisions, appear again in articles 284 and 285 on defaming the government.

Not yet discussed

A member of the House’s working committee for the draft revisions, Ichsan Soelistio, of the PDI-P faction in Jakarta yesterday said the articles on defamation had not been agreed to by the House and the government. Those articles will be deliberated by the working committee and the Law and Human Rights Ministry on Monday (5/2).

Although the MK has revoked the articles, Ichsan said, stipulations on defaming the President and Vice President, as well as the government must be included to maintain the dignity and image of the head of state and state officials. Criticizing the President and the government is allowed but it must be conducted in a constructive way.

“We must differentiate between freedom of expression and defamation. What we are highlighting is not the target of defamation. Moreover, are we willing to see our President being insulted?” he said. He added that charges for defaming the President, Vice President or government could only be lodged in cases reported to the police.

Ichsan believed the stipulations would not turn into a “rubber article” that hampered freedom of expression. The definition of the act of defamation would be made clearer and there would be detailed explanations referring to the MK ruling.

House working committee member Muhammad Syafi’i of Gerindra Party said one explanation related to act of defamation is the perpetrator would not be charged if the act was for the sake of public interest, truth or in self-defense.

Mudzakkir, an expert team member for the draft revisions representing the government, said the decision to reintroduce stipulations that had been revoked did not mean lawmakers were ignoring the MK ruling, which is final and binding. There are specific issues that will be regulated in the revised Criminal Code.

Kompas/Wisnu Widiantoro

Chairman of the Constitutional Court (MK) Arief Hidayat (center) presides over a panel of judges in a decision-making sesson on the judicial review of article on treason of the Criminal Code at the MK building, Jakarta, Wednesday (31/1).

Judicial review

MK spokesman Fajar Laksono Soeroso said legislation that contravened the MK ruling went against the Constitution. As lawmakers, the government and the House must adhere to MK rulings. “Ignoring court rulings means we have not become a law-based state as mandated in the 1945 Constitution,” he said.

Given such a condition, Fajar said, it was possible that the norms in the draft Criminal Code revisions would be taken to the MK for judicial review.

Indonesian Policy and Law Study Center (PSHK) researcher Miko Ginting said the attempt of the government and the House to reintroduce the unconstitutional stipulations shows deviation from the original goal of the Criminal Code reform.

“Criminal Code reform has a grand mission to add strength to the foundation of the national criminal law system. One derivative from the grand mission is to decolonize criminal law, consolidate criminal law, invoke democratic values in criminal law and to adjust it with national and international development. The grand mission can only be achieved by creating a Criminal Code protects citizens,” Miko said.

The MK, Miko said, had stated that the stipulations on defaming state leaders contravened the Constitution.

(AGE/REK)