---

The Applicant’s Attorney Victor Santoso Tandiasa and Kurniawan attended at first judicial review session on Act of the Criminal Code Procedures (Kitab Undang-Undang Hukum Pidana –KUHP) on Thursday March 19 at Plenary Room, the Constitutional Court Building (Gedung Mahkamah Konstitusi –Gedung MK). Photo PR/Ganie

 

 

The defendant of Tegal City Mayor defamation case, occurred on Major Election (Pemilihan Walikota –Pilwakot) 2013 was filed judicial review on Article 319 Act No.1 Year 1946 of the Criminal Code Procedures (Kitab Undang-Undang Hukum Pidana –KUHP). The regulation was considered to bring the Applicant to the court.

The Applicant is Agus Slamet and Komar Raenudin, both are activists from different Community Sponsored Organizations (Lembaga Swadaya Masyarakat –LSM). Agus and Komar are charged with criminal acts based on Article 27 (3) Act No. 11 Year 2008 of Electronic Transactions & Informations (Undang-Undang Informasi Transaksi Elektronik) towards Tegal Mayor’s and councilor’s defamation via social media Facebook.

Represented by their Attorney, the Applicant assessed the charge will not occurred if the phrase ‘except based on Article 316’ noted on Article 319 KUHP removed. It because the phrase had already irrelevant with the Constitutional Court Verdict No. 13-027/PUU-IV/2006 which essentially the Court declared that a President and Vice President cannot granted the privileges that cause them acquired status and treatment as an individual substantively and on different dignity before the law and other citizens.

The Applicant viewed the President and Mayor are state officials, so consideration on the verdict was also applied to entire state officials, included Tegal Mayor. “In line with the democratic concept of people sovereignty, thus no individuals are treated differently,” said the Applicant’s Attorney Kurniawan at first session on Case No. 31/PUU-XIII/2015 at the Constitutional Court (Mahkamah Konstitusi –MK) session room, on Thursday March 19.

The phrase ‘except based on Article 316’ noted on Article 319 the KUHP that still implemented was considered giving opportunities to state officials to grant privileges and treat them as an individual who substantively on different dignity before the law and other citizens. Therefore, the rule states if criminal acts occurred to state officials, complaint offenses are not needed. According to the provisions, the Applicant considered the phrase on Act a quo was contrary to Article 1 (3), Article 27 (1), and Article 28 (1) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945)

As for Article 316 states:

“The penalties set forth in the previous articles in this chapter, can be added with one-third of it if the defamation occurs to an official at the time (he served –red.) or because he served lawful duties.”

(Pasal 316: “Pidana yang ditentukan dalam pasal-pasal sebelumnya dalam bab ini, dapat ditambah dengan sepertiga jika yang dihina adalah seorang pejabat pada waktu atau karena menjalankan tugasnya yang sah.”)

Whereas Article 319 states:

“Insults that shall be sentenced to criminal penalties under this chapter, are not prosecuted if there are no complaints from people affected by the crime, except based on Article 316”

(Pasal 319: “Penghinaan yang diancam dengan pidana menurut bab ini, tidak dituntut jika tidak ada pengaduan dari orang yang terkena kejahatan itu, kecuali berdasarkan pasal 316.”)

Responding to the Applicant’s arguments, Judge Panel chaired by Constitutional Judge Suhartoyo advised the Applicant to explain posita by using the Applicant case, by attaching the phrases or words that conducted on Facebook which were considered as an insult. "The words that you said on Facebook which considered as an insult, what the sentence is, and then connect with the defamation case against other officials who has once happened," said Constitutional Judge Wahiduddin Adams. (Lulu Hanifah/Prasetyo Adi N.)

 

---