Debating The Existence Of Articles On The Dissemination Of Hatred In The Indonesian Criminal Code

It is impossible for the government to abolish criminal clauses for taking legal actions against the perpetrators of anarchical acts during any activity for the expression of opinion in front of the public.

This opinion was expressed by the Director General of Human Rights, Prof. Dr. Harkristuti Harkrisnowo, S.H., M.H. as Government Representative in the court hearing of the Constitutional Court for the judicial review of the Indonesian Criminal Code, Case No. 6/PUU-V/2007 filed by a physician who was also the Director of Inter-Barrack Communication Forum (FORAK), Dr. R. Panji Utomo represented by his Attorney-In-Fact A.H. Wakil Kamal, S.H., with the agenda of hearing the testimony of the Government and the People’s Legislative Assembly.

In her opening statement, Harkristuti stated that the criminal law has functions among other things to protect the legal interests of the state, society, and the perpetrators of criminal acts. “In particular for the interest of the state, it is necessary to stipulate what kind of actions which may deemed to impair and undermine the state’s authorities,” she explained.

Therefore, Harkristuti further explained, in the Draft Criminal Code, the government still includes the provisions of Article 154 of the Indonesian Criminal Code which is amended to become Article 284, by amending its criminal offence from the formal offence to the substantive offence. “Hence, in the future such criminal sanction can be imposed if there is consequence arising from such opinion expression,” this Professor of Criminal Law further explained.

In opposition to the Government, the Petitioner felt that his constitutional rights have been impaired by the application of Article 154 of the Indonesian Criminal Code. The state, in this case the police were deemed to take arbitrary action, since the peaceful action ended in chaos in front of the NAD-Nias Rehabilitation and Reconstruction Agency office was evidently triggered by the security apparatus. However, the Petitioner which was a part of the negotiation team at that time, was arrested and named as a suspect and finally was found guilty based on the aforementioned article of the Indonesian Criminal Code. “Therefore, we file the judicial review on this article, so that in the future there is an improvement in the Indonesian penal law enforcement,” the Attorney-In-Fact of the Petitioner, A.H. Wakil Kamal, S.H., explained.

Therefore, in his petitum conveyed prior to the presentation of the testimony of the Government, the Petitioner through his Attorney-In-Fact requested the Constitutional Court Justices to declare Articles 107, 154, 155, 160, 161, 207, and 208 of the Indonesian Criminal Code are contradictory to the 1945 Constitution as well as does not have legal binding effect.

In this court hearing, the testimony of the People’s Legislative Assembly cannot be heard yet because members of this institution are still in the recess period. (Wiwik Budi Wasito)

Tuesday, April 24, 2007 | 14:56 WIB 340
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