---

Attorney Tonin Tachta Singarimbun delivering the subjects of the petition in the preliminary judicial review hearing of Law No. 1 of 1946 on the Criminal Law, Tuesday (9/6) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held the preliminary judicial review hearing of Law No. 1 of 1946 on the Criminal Law on Tuesday (9/6/2020) in the Courtroom of the Constitutional Court in compliance with existing COVID-19 health protocols. The petition No. 33/PUU-XVIII/2020 was filed by Nelly Rosa Yulhiana, wife of Yudi Syamhudi Suyuti, who was declared a suspect by the public prosecutor for treason (makar).

The Petitioner argued that her constitutional rights were violated by the enactment of Article 14 and Article 15 of Law No. 1 of 1946. In her petition, the Petitioner outlined a criminal case involving her husband. The Petitioner\'s husband was named a suspect by the public prosecutor based on Article 14 and Article 15 of Law No. 1 of 1946. He was threatened with a maximum prison sentence of three years and a maximum prison sentence of 2 years as stated in Article 14 and Article 15 of Law No. 1 of 1946 while in fact according to Article 14 paragraph (1), the public prosecutor detain a suspect during the investigation, prosecution, and trial until ruling.

"So, the Petitioner believes that [according to] Article 14 paragraph (1), [the prosecutor] can only [detain a suspect] during […] investigation, prosecution, and trial until ruling," said attorney Tonin Tachta Singarimbun. 

The Petitioner also believes that the two articles put her activities as activists at risk and unprotected by the Constitution while, in fact, as a citizen and an activist, the Petitioner should not be restricted from expressing her opinions/results of her studies/academic work because the Constitution guarantees freedom of association, assembly, and expression of thoughts both verbally and in writing. 

Singarimbun explained that the two articles constitute revocation and addition to the provisions in Article 171 of the Criminal Code (KUHP) Chapter V regarding public order in book II of the Criminal Code concerning crime. IN the beginning there was only one paragraph in Article 171 of the Criminal Code, which reads, "Anyone who broadcasts a hoax, intentionally causing chaos among the public is subject to imprisonment up to one year and a fine up to Rp300." "This is still maintained, but only the [imprisonment] remains. Article 14 paragraph (2) of Law No. 1 of 1946 originated from the Gezag Militair Verdodening, which took effect on May 21, 1940 with [several changes]," he stressed. 

According to the Petitioner, Article 171 of the Criminal Code was intended to assuage the public’s fears as the Dutch East Indies colonial government’s effort to maintain public order and to dispel hoaxes spread by those who wanted independence. Article 15 of Law No. 1 of 1946 was formulated later on. The Petitioner saw the need for changes to the Criminal Law because the situations in 1946 and 2020 are different. 

The Petitioner also explained that Article 14 paragraphs (1) and (2) as well as Article 15 of Law No. 1 of 1946 require three things: broadcasting or dissemination, hoaxes or hearsay or news with exaggeration or omission, and chaos. The Petitioner believes that the requirement of those three things has not fulfilled one’s constitutional rights. 

"There is no [part of the Constitution] in Article 14 and Article 15 of Law No. 1 of 1946, so the norms of Article 14 and Article 15 of Law No. 1 of 1946 have not provided constitutional protection for the Petitioner because they have not required the three things: broadcasting or dissemination; second, hoaxes or hearsay or news with exaggeration or omission; and chaos," Singarimbun added. 

The Petitioner also argued that Article 14 paragraphs (1) and (2) or Article 15 of Law No. 1 of 1946 are reason why the 3 (three) indictments by the public prosecutor that the Petitioner’s husband were under are suspicious. That is because the investigator declared him a suspect due to Article 110 of the Criminal Code juncto Article 107 of the Criminal Code juncto Article 87 of the Criminal Code and/or Article 207 of the Criminal Code and/or Article 14 and/or Article 15 of Law No. 1 of 1946 for the allegation of treason with the intention of overthrowing a legitimate government and/or crime against public authorities and/or spreading hoaxes.

Revision to the Petition’s Structure 

Constitutional Justice Suhartoyo advised the Petitioner to improve the petition’s structure. He also asked her to describe her constitutional loss suffered due to the law. He also requested an explanation of the causal relationship between the constitutional loss and the implementation of the norms. "So, there is a causal relationship that [your] constitutional rights guaranteed by the Constitution were actually impaired by the enactment of the article. This [should also be] illustrated," he said. 

He also recommended that the Petitioner clarify who suffered loss, whether it is the Petitioner herself or her husband. "If the husband argues [that he] was harmed by the enactment of Article 14 and Article 15 and then he was declared a suspect and now he [is] a defendant in the Central Jakarta District Court, who exactly is the Petitioner? If you remain firm with this petition, what is your position? Who is it that actually suffered losses? This relates to identity and […] legal standing," Justice Suhartoyo explained. 

Constitutional Justice Arief Hidayat requested that the Petitioner include articles in the 1945 Constitution as touchstones. "[…] touchstones or constitutional articles used as the basis for constitutional review, […], the description of why Article 14, Article 15 are contrary to the constitution," he explained. 

The Petitioner was to submit a revised petition within no later than 14 working days, by June 22, 2020. (Utami/FY/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 06/12/2020

---