Constitutional Justices Suhartoyo and Manahan M. P. Sitompul speaking at a Constitution Lecture held by the West Sumatra Regional Police, Friday (8/26/2021) at the West Sumatra Police Headquarters. Photo by Humas MK/Ifa.

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Saturday, August 28, 2021 | 08:47 WIB

JAKARTA, Public Relations—Constitutional Justices Suhartoyo and Manahan M. P. Sitompul spoke at the Constitution Lecture organized by the West Sumatra Regional Police, Friday afternoon, August 28, 2021 at the West Sumatra Police Headquarters. The lecture was organized by the Constitutional Court (MK) and the West Sumatra Regional Police in order to expand the police’s understanding of the amendment to the Criminal Code (KUHP) and the Criminal Procedure Code (KUHAP) through the Court decisions.

Beginning his lecture, Justice Manahan said that the Constitutional Court was regulated in Article 24 paragraph (2) of the 1945 Constitution, which stipulates that the judicial power is exercised by a Supreme Court with its subordinated judicial bodies within the form of general courts, religious courts, military courts, administrative courts, and by a Constitutional Court.

Meanwhile, Article 24C paragraph (1) of the 1945 Constitution defines the Constitutional Court’s authorities to review laws against the 1945 Constitution, to decide on authority disputes between state institutions whose authorities are granted by the 1945 Constitution, to decide on the dissolution of political parties, and to decide on disputes over general election results. Meanwhile, Article 24C paragraph (2) of the 1945 Constitution stipulates that the Court is obligated to decide on the House’s opinion on an alleged violation of law or a disgraceful act by the president and/or vice president or their failure to meet requirements as president and/or vice president.

The Court also received an additional authority after the Court Decision No. 97/PUU-XI/2013, pursuant to Article 157 paragraph (3) of Law No. 10 of 2016 on the Constitutional Court authorities, to decide on the election of governors, regents, and mayors (pilkada). “Pilkada is not based on the Constitution, but a law. so the authority [to rule on pilkada] is granted by the law,” he said.

Due to those authorities, the Constitutional Court were dubbed the guardian of the Constitution, the guardian of democracy, the guardian of the state ideology, the protector of human rights, the protector of the citizens’ constitutional rights, and the final interpreter of the Constitution. He added that the Court must be progressive and moving forward.

He also explained that the justices must rule according to their values through the interpretation of the law, although it might be opposed to those with political and administrative power.

The Court’s legal interpretation in the judicial review of criminal law highly depends on the justices’ interpretation. In order to determine whether a criminal norm is biased or multi-interpretive, descriptive abstraction or grammatical interpretation of the norm is done.

“The Court upholds the progressive law, in that the legal concept is not confined by the text alone, but by the sense of justice that lives in society and useful law,” Justice Manahan said.

He believes that the Court decisions not only declare any element/phrase/paragraph/article of the criminal law unconstitutional, but they might also give birth to new norms by declaring a criminal law norm not legally binding. By eliminating criminal threat, and some even expanding the scope of existing norms or limiting then.

Therefore, the Court decisions may lead to new interpretations of criminal law norms in the element of crime, to changes in the formulation of articles—including changes in the criteria of criminal offenses—and even may give birth to new norms.

Justice Manahan also said that the KUHAP was petitioned the most, in 70 cases—11 of them were granted.

Implications of Decisions

Meanwhile, Constitutional Justice Suhartoyo said the Constitutional Court decision could have implications on criminal law norms, especially the criteria of criminal acts, changes in the criteria of criminal offenses, and the non-applicability of a criminal law norm.

In Decision No. 006/PUU-V/2007, he added, insult to the Government in public is not classified as a crime. The Court’s considerations contain the criteria of criminal offenses formulated in Articles 154 and 155 of the Criminal Code, which are formal offenses that only require the fulfillment of elements of prohibited acts (strafbare handeling) without relating it to the consequences of the acts. As a result, there is a tendency of power abuse in the a quo article because it can easily be interpreted arbitrarily by those in power.

The president and vice president should not receive legal privilege that distinguish them from the people, which holds the highest sovereignty, except procedurally in order to allow them to carry out their functions.

This type of criminal provision may lead to legal uncertainty (rechtsonzekerheid) as it is subject to the interpretation whether a protest or opinion may be classified as criticism or an insult to the president and/or vice president. The a quo article negates the principle of equality before the law and reduce freedom of expression, opinion, information, and legal certainty.

The criminal sanction in Article 134—a maximum of six years in prison—could be used to hinder the democratic process, especially access to public office, which requires that a person has never been convicted of a crime punishable by imprisonment of five years or more.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/6/2021 14:22 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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