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The Petitioner’s attorney Tonin Tachta Singarimbun explaining the revision to the petition in the judicial review hearing of Law No. 1 of 1946 on the Criminal Law, Tuesday (30/6) in the Courtroom of the Constitutional Court. Photo by Humas MK/Bayu.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another judicial review hearing of Law No. 1 of 1946 on the Criminal Law on Tuesday afternoon (30/6/2020) in the Courtroom of the Constitutional Court.

The Petitioner of case No. 33/PUU-XVIII/2020 was accompanied by her legal team, including Tonin Tachta Singarimbun. “Following the [justices’] advice in the preliminary hearing, we have made revision. When the petition was filed, it was obscure whether the petition was filed by Nelly Rosa Yulhiana or her husband Yudi Syamhudi Suyuti. In this [revised] petition, the petitioner is an activist who is concerned that she could be criminalized with Article 14 paragraphs (1) and (2) or Article 15 of Law No. 1 of 1946,” he said.

Also read: Husband Suspected of Treason, Wife Challenges Criminal Law

In the revised petition No. 33/PUU-XVIII/2020, the Petitioner uses the same norms and touchstones, which are Article 1 paragraphs (2) and (3), Article 28D paragraph (1), Article 28E paragraphs (2) and (3), Article 28G paragraph (1), and Article 28I paragraph (2). The constitutional damage was also revised, in which the Petitioner’s loss of constitutional rights and authority are specific and at least potential. The Petitioner also outlined the reasons for submitting the petition and revised the petitum.

In the preliminary hearing, 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.

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. 

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. (Utami/Fitri/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 6/30/2020

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