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Professor of Criminal Law of Trisaksi University Andi Hamzah, an expert presented by the Petitioners, left the trial after lending his expertise in the judicial review of the Criminal Code (KUHP), Tuesday (1/8) in the Plenary Hall of the Constitutional Court. Photo by Humas/Ganie.

The judicial review of the Criminal Code (KUHP) on the word makar (treason) for two petitions, namely cases Number 7/PUU-XV/2017 and Number 28/PUU-XV/2017, was held once again by the Constitutional Court on Tuesday (1/8). The agenda of the hearings of these two cases was to hear the statements of the Petitioners\\' experts and witnesses.

Professor of Criminal Law of Trisaksi University Andi Hamzah said that Indonesia misinterpreted aanslag as makar. The word aanslag came from the Dutch language that means “striking” or “assault” in English. Based on that fact, according to Andi, it is a misconception to directly interpret is as makar. In fact, in other countries, there is no word equivalent to maker in regulating the protection of state security.

"In the United Kingdom, crimes against the head of state are categorized as a type of conspiracy. Meanwhile, in Russia, they are categorized as malicious conspiracy. I think the word makar is more appropriate to be replaced by ‘attempt’," stressed the expert presented by the Petitioner.

According to Andi, when aanslag is interpreted as makar, it carries more negative implications. For example, people discussing their intention to replace the state system can be categorized as makar. If the intent is not accompanied by concrete actions, then it should not be an issue. Therefore, it is included in freedom of opinion. "This article on makar should not restrict freedom of opinion," he explained.

Today, Andi said, many people have been arrested under the pretext of makar. For example, a rally for the House of Representatives to return to the 1945 Constitution is considered makar although there is no attempt, no intention, and no initiation of implementation. "Members of the public might just be boasting, but it can be interpreted as makar," he added.

Another expert, Eko Riyadi, explained the meaning of freedom of opinion and expression. Freedom of opinion, according to him, is absolute and non-dirigible rights. "In international law, the basis is Article 4, the International Covenant on Civil and Political Rights. In emergency situations, freedom of opinion should not be limited," he explained.

Freedom of expression, he added, can be limited but is not arbitrary. In his opinion, there are procedures that must be followed by the state to make such restrictions.

"Well, the charge of makar for those who discuss about situations in Indonesia, for example, is disproportionate, in my opinion .If society would like to criticize the authority, it must be given a channel," the lecturer of Law Faculty, Universitas Islam Indonesia (UII), explained.

Ineffective

Meanwhile, witness Thaha Ahmad claimed that the use of article on makar in Papua is improper. According to him, the article does not bring a positive effect at all for the Papuan people. "Since the 1960\\'s, the Government\\'s solution is either military operations or the charge of makar. This encourages people to become more militant," he said.

He called the action is ineffective. According to him, the article on makar is too hard and it turns a blind eye to the culture of Papuan people while though the incidents occurring in Papua cannot always be associated with makar. Thaha emphasized that there were various expressions of Papuan culture that must be understood more deeply.

Petitioners of the case Number 28/PUU-XV/2017 are Hans Wilson Wader, Meki Elosak, Jemi Yermias Kapanai, Father John Jonga, Yayasan Satu Keadilan, and the Indonesian Gospel Tabernacle Church in Papua. They reviewed Article 104, as well as Articles 106 through 110 of the Criminal Code. According to him, the regulations concerning makar had been used by the Government to criminalize the Petitioners and had impaired their constitutional rights as citizens.

Case Number 7/PUU-XV/2017 was filed by the NGO Institute for Criminal Justice Reform (ICJR). The Petitioner reviewed Articles 87, 104, 106, 107, 139a, 139b, and 140 of the Criminal Code. The Petitioner considered that there was no clear definition of the word aanslag, which was defined as makar. The word makar comes from Arabic, while aanslag is more appropriately interpreted as an attack. This, according to the Petitioner, obscures the basic definition of the word aanslag.

(ars/lul/Yuniar Widiastuti)

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