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Plenary ruling hearing of the judicial review of the Criminal Code on Wednesday (31/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The petition for judicial review of Law No. 1/1946 on the Criminal Code (KUHP) petitioned by the Institute for Criminal Justice Reform (ICJR) was finally rejected by the Constitutional Court (MK). This ruling affirms that Articles 87, 104, 106, 107, 108, 139a, 139b, and 140 of the Criminal Code are in accordance with the 1945 Constitution.

"The verdict heard, rejected the Petitioner’s petition for the whole," said Chief Justice of the Constitutional Court, Arief Hidayat, in the presence of the other constitutional justices in the ruling hearing of the Constitutional Court\'s decision on Wednesday (31/1) afternoon.

According to the Court, in the of case No. 7/PUU-XV/2017, the petition did not illustrate the change of articles that were declared unconstitutional by the Petitioners as to create the legal certainty as intended by the Petitioner.

"The Petitioner’s argument that by interpreting the word “makar” (treason) in the articles of the Criminal Code as \'attack\' without a clear explanation of the elements of criminal acts in question will provide legal certainty, is difficult to accept," said Constitutional Justice Suhartoyo who read the opinion of the Court.

The Court is of the opinion that if the word "makar" is simply interpreted as "attack" without being linked to other norms formulated in the articles petitioned by the Petitioners, particularly Article 87 of the Criminal Code, it will only create legal uncertainty as new law enforcers can take legal actions against a person suspected of committing criminal acts of "makar," if the person has committed an act of "attack" and it has actually caused a casualty.

Based on the above description, the Court is of the opinion that the regulation of the articles of the a quo law petitioned by the Petitioners has been in line and not contradictory to Article 28D paragraph (1) of the 1945 Constitution. In the perspective of Article 28 paragraph (1) of the 1945 Constitution, the state upholds the rule of law for all people without exception. The law plays an important role in the nation and state life.

Based on the above considerations, according to the Court, it is not reasonable to argue that the norms of the articles in the Criminal Code that deals with "makar" are contrary to the right to personal, family, honor, dignity, and property protection under one\'s power and the right to a sense of security and protection from fear.

Nevertheless, Justice Suhartoyo stated that the Court needed to emphasize that law enforcers should be careful in applying the articles pertaining to "makar" so as not to be a means to obstruct freedom of expression in a democratic state. "Based on all the above considerations, according to the Court, the Petitioner’s petition is groundless according to law," Justice Suhartoyo said.

Not Accepted

Meanwhile, the Constitutional Court declares the petition of Case No. 28/PUU-IV/2017, which also reviews the Criminal Code, unacceptable and rejects the Petitioners\' petition for the rest. The Petitioners claimed that the norms being reviewed can be used to criminalize meetings that voice democracy, according to the Court, is completely unreasonable under the law.

“As long as such meetings in the name of democracy to claim the rights argued by the Petitioners are not intended to commit "makar" (treason) or to rebel against the lawful government under the Constitution," said Deputy Chief Justice Anwar Usman.

In response to the claim of Hans Wilson Wader and others, the Papuan citizens don’t agree that the regulation of criminal sanctions in Article 110 paragraph (2) of the Criminal Code is immediately equated with criminal penalties in Articles 104, 106, 107, and 108. Anwar said the Court is of the opinion that this is the territory of the legislators to formulate.

Whereas concerning the Petitioners\' concern about the misapplication of the a quo articles in concrete cases, it is entirely the jurisdiction of the judges who adjudicate the case in concreto. In this regard, the Court needs to reaffirm that law enforcers must be cautious in applying the articles relating to crimes against the state so as not to be a means to silence freedom of expression in a democratic state.

Based on all the above considerations, the Petitioners\' argument on the norms governing "makar" (treason) as mentioned in Articles 104, 106, and 107 of the Criminal Code has been considered and decided by the Court in the Constitutional Court Decision No. 7/PUU-XV/2017. Meanwhile, the Petitioners’ argument on revolt and conspiracy to commit "makar" (treason) and revolt as regulated in Articles 108 and 110 of the Criminal Code are not contradictory to the 1945 Constitution.

"Therefore, the Court is of the opinion that the Petitioners\' argument pertaining to the unconstitutionality of Articles 108 and 110 of the Criminal Code is unreasonable under the law," said Justice Anwar. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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