Article 154 and Article 155 of the Indonesian Penal Code are Contradictory to The 1945 Constitution
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The Constitutional Court declared Article 154 and Article 155 of the Indonesian Penal Code (KUHP) contradictory to the 1945 Constitution. This was pronounced in the hearing for the pronouncement of decision for case No. 6/PUU-V/2007 which was filed by Dr. R. Panji Utomo, a doctor who is also the Director of the Inter-Barrack Communication Forum (FORAK), Tuesday 17/7.

In his petition, Panji claims that his constitutional rights have been impaired by the application of Article 107, Article 154, Article 155, Article 160, Article 161, Article 207 and Article 208 of KUHP which are deemed contradictory to Article 27 Paragraph (1), Article 28, Article 28C Paragraphs (1) and (2), Article 28D Paragraph (1), Article 28E Paragraphs (2) and (3) and Article 28F of the 1945 Constitution. However, only Article 154 and Article 155 were declared as having no binding legal effect by the Constitutional Court while the Court declared that the rest of the petition can not be accepted (niet ontvankelijk verklaard).

The Constitutional Court is of the opinion that insofar as concerning Article 154 and Article 155 of KUHP, Panji has the legal standing to act as Petitioner. As the Director of FORAK, Panji was once alleged, accused and convicted lawfully and convincingly for a criminal act of “publicly expressing feelings of hostility, hatred or contempt against the Government of the Republic of Indonesia” under the Decision of Banda Aceh District Court Number 232/Pid.B/2006/PN-BNA dated December 18, 2006. Meanwhile, the Constitutional Court is of the opinion Article 107, Article 160, Article 161, Article 207 and Article 208 of KUHP are irrelevant to the argument concerning constitutional right impairment that Panji claims to have suffered.

Article 154 of KUHP reads as follows:

“Any person publicly expressing feelings of hostility, hatred or contempt against the Government of the Republic of Indonesia shall be punished by a maximum imprisonment of seven years or by a maximum fine of four thousand and five hundred rupiah”;

 Article 155 of KUHP reads as follows:

“Any person who disseminates, openly demonstrates or puts up a writing where feelings of hostility, hatred or contempt against the Government of Indonesia are expressed, with the intent to give publicity to the contents or to enhance the publicity thereof, shall be punished by a maximum imprisonment of four years and six months or a maximum fine of four thousand rupiah”.

“If the offender commits the crime in his profession and during the commission of the crime five years have not yet elapsed since an earlier conviction on account of a similar crime has become final, he may be prohibited from exercising said profession”.

In its legal considerations, the Constitutional Court explains that the qualification of punishable offense formulated in Article 154 and Article 155 of KUHP only requires the fulfillment of the element of a prohibited act (strafbare handeling) without being linked to the consequence of an act. Consequently, the formulation of the two penal provisions may lead to abuse of power since they can be easily interpreted according to what the ruler wishes.

According to the Constitutional Court, a citizen intending to criticize or to express opinions concerning the Government, as it constitutes his constitutional right guaranteed by the 1945 Constitution, will be easily qualified by the ruler as expressing “feelings of hostility, hatred or contempt against the Government” due to the uncertainty of the criteria therefor in the formulation of both Article 154 and Article 155 of KUHP. Such uncertainty makes it difficult to distinguish a criticism or expression of opinions from such feelings of hostility, hatred or contempt against the Government, since a prosecutor does not need to prove whether or not a statement or opinion expressed by a person has actually caused or provoked hatred or hostility among the public.

The Constitutional Court also explained that Article 154 and Article 155 of KUHP can not be rationally maintained since it is impossible for a citizen of an independent and sovereign state to take his own state as an enemy except in cases of subversion. However, the aforementioned issue of subversion is separately regulated in other articles, not in Article 154 or Article 155 of KUHP.

In the Dutch Wetboek van Strafrecht itself, which is the source of KUHP, there are no provisions similar to those of Article 154 and Article 155 of KUHP. Even at the time when there was an idea to include similar provisions in the Dutch Civil Code in the 19th century, the Dutch Minister of Justice at that time expressly stated his rejection of such an idea.  He stated, “De ondergeteekende zou deze bepalingen, welke op zichzelf te verklaren zijn door de behoefte van een koloniale samenleving, zeker niet voor het Rijk in Europa willen overnemen” (the following regulation shall be automatically declared to apply to the needs of colonial communities, and clearly shall not apply to European countries).

Historically, the provisions of Article 154 and Article 155 of KUHP were adopted by Dutch Indies colonial ruler from Article 124a of British Indian Penal Code Year 1915 which has been, even in India itself, declared to be no longer applicable by the Indian Supreme Court and the East Punjab Hing Court as the provision is considered contradictory to Article 19 of the Indian Constitution concerning the freedom to have and express opinions.

Meanwhile in the Netherlands, such provisions are also deemed undemocratic as they are contradictory to the idea of freedom of expression and opinion, and as such their application can be tolerated only in colonies, in casu in Dutch Indies (Indonesia). Therefore, it is historically evident that the provisions of Article 154 and Article 155 of KUHP have been intended to ensnare independence movement leaders in Dutch Indies, and in this way they are contradictory to the status of Indonesia as an independent and sovereign state.

In relation to that, the Constitutional Court actually has declared its stance with respect to the Judicial Review of Article 134, Article 136 bis, and Article 137 of the Penal Code (KUHP), as reflected in its Decision Number 013-022/PUU-IV/2006. The legal considerations part of the decision explains that “It is irrelevant for Indonesia as a constitutional law which takes the form of a republic and which is based on peoples sovereignty and which upholds the human rights as set forth in the 1945 Constitution to maintain Article 134, Article 136 bis, and Article 137 in its Penal Code (KUHP) since they negate the principle of equality before the law, diminish the freedom of expression and opinion, the freedom of information, and the principle of legal certainty. Therefore, the Draft Law on the Penal Code (RUU KUHP) as an effort of revising the KUHP inherited from colonial times, must also exclude articles of identical with or similar to the provisions of Article 134, Article 136 bis, and Article 137 of the Penal Code (KUHP)”.

Responding to this decision of the Constitutional Court, A. H. Wakil Kamal, the Attorney-In-Fact of the Petitioner, stated that this decision is the triumph of democracy. “The provisions set forth in KUHP which are no longer in line with the principles of democracy and human rights, and which impede the growth and development of civil society must also be abolished,” said Wakil after the hearing. Despite such decision, Wakil was dissatisfied since only two articles were declared as having no binding legal effect. (Luthfi Widagdo Eddyono).


Tuesday, July 17, 2007 | 15:16 WIB 173