The Petitionersâ Attorneys are listening to the decision of judicial review of Law Number 4/PNPS/1963 concerning Securing Printed Materials pronounced by the Panel of Constitutional Justices, (13/10).
Jakarta, MKOnline – The Constitutional Court decided that Law Number 4/PNPS/1963 concerning Securing Printed Materials Which Content May Disturb Public Order is contradictory with the 1945 Constitution and has no binding legal power. The Court’s injunction of decision Number 6-13-20/PUU-VIII/2010 was pronounced by the Chief Justice of the Constitutional Court, Moh. Mahfud MD accompanied by eight constitutional justices, Wednesday (13/10), at the Plenary Court Room of the Constitutional Court. The petition was filed by 10 Petitioners comprised of individuals and institutions, namely Darmawan, Muhammad Chozzin Amirullah, Adhel Setiawan, Eva Irma Muzdalifah, Syafrimal Akbar Dalimunthe, Muhiddin M. Dahlan, the Indonesian Institute of Social History (Institut Sejarah Sosial Indonesia), I Gusti Agung Ayu Ratih and Rhoma Dwi Aria Yuliantri.
In the opinion of the Court read by Deputy Chief Justice of the Constitutional Court Achmad Sodiki, the Court viewed that the confiscation of printed materials by the Public Prosecutor’s Office, the National Police and other state apparatus with the authority to maintain public order, as set forth in the provision of Article 6 of Law No.4/PNPS/1963, without the authorization from the head of the local district court, is contradictory to Article 38 paragraph (1) of Law Number 8 Year 1981 concerning Criminal Procedural Code. ”Therefore the provisions of Article 6 of Law Number 4/PNPS/1963 and Law Number 8 Year 1981 concerning Criminal Procedural Code had created legal uncertainty, violating the provisions of Article 28D paragraph (1) of the 1945 Constitution,” he said.
In addition, Sodiki continued, confiscation of books as one of printed materials without following any legal proceedings is equal to an arbitrary expropriation of right to personal property, which is highly prohibited by Article 28H paragraph (4) of the 1945 Constitution. The Court considered that the act of expropriation of printed materials without following legally proper procedures, particularly without undergoing a judicial process, constitutes an extra judicial execution which is highly opposed in a constitutional state requiring a due process of law. “The confiscation of the book titled 'Enam Jalan Menuju Tuhan' written by Darmawan (Petitioner of case Number 6/PUU-VIII/2010), according to the Court, is a concrete case of the due process of law, law enforcers must follow up the case by using the available legal instruments such as the Religion Desecration Law and/or the Indonesian Criminal Code,” he explained.
With regard to the case of printed materials which content violates applicable laws and regulations, such as in the confiscation of the book titled “Enam Jalan Menuju Tuhan” as mentioned above, the authorized state apparatus may perform confiscation upon authorization from the head of the local district court or to perform prior confiscation in the matter of urgency. Sodiki added that request for the authorization of confiscation from the head of the local district court is followed with investigation, prosecution and trial by the authorized institutions. All law enforcement will eventually be determined in a court decision having permanent legal force. “Not only banning, confiscating, detaining, imprisoning, imposing death penalty is in fact allowed insofar as it is done by following judicial process, rather than the decision of the Attorney General,” he explained.
Sodiki also explained that since the Petitioners’ petition concerning Article 1 up to and including Article 9 of Law Number 4/PNPS/1963 is granted and those Articles are declared contradictory to the 1945 Constitution, therefore Article 10 which states, “All provisions which content are contradictory to or have been regulated in this Stipulation shall be declared invalid” and Article 11 which specifies, “This Presidential Stipulation shall come into force on the day of the enactment thereof,” become meaningless and therefore the entire Law Number 4/PNPS/1963 is declared contradictory to the 1945 Constitution.
Therefore, in the injunction of decision read by Chief Justice of the Constitutional Court Moh. Mahfud MD, the Court declared that it could not accept the formal review filed by the Petitioners. “And to grant the petition for judicial review by the Petitioners in part,” he said.
Meanwhile, Constitutional Justice Hamdan Zoelva expressed a dissenting opinion. Hamdan was of the opinion that taking one’s freedom violates human rights. However for public interest, detaining a person is justified provided that it is instructed by the law. Similarly, restrictions on individual freedom in the state of emergency were made possible pursuant to provisions of law (See Law Number 23 Prp Year 1959 concerning State of Emergency). Likewise, the right and freedom of expression, the right to seek, obtain, possess, keep, process and convey any information by using all types of means available, as well as the guarantee on personal property can be restricted for the interest of public security and order. “However, in order to avoid abuse of authority and power by the government, such restriction must be placed by law,” Hamdan explained.
Furthermore, Hamdan explained, in the context of the highly pluralistic Indonesian society, the threat on public security and order caused by ethnicity, race and religion remains posing a problem which is not yet resolved properly. The effect of a writing in printed materials which offends the feeling of a particular ethnic, religion and race or group may cause a conflict, war between ethnics and religions which would certainly threaten public security and order. The authority of the government which assumes the obligation and responsibility to maintain public order should not be amputated in performing its function to ensure public security and order, for the reasons of violating individual freedom. “Based on the above consideration, banning the circulation of printed materials which disturb public order pursuant to the instruction of law in the context of the government’s function to maintain public order as intended in Law Number 4/PNPS/1963 is a norm which is not contradictory to the constitution,” he said. (Lulu Anjarsari/mh)
Thursday, October 14, 2010 | 07:16 WIB 394