Constitutional Justices Suhartoyo and Saldi Isra taking a photograph with the Yogyakarta Special Provincial Police Deputy Chief and the participants of the Constitutional Oration by the Yogyakarta Special Provincial Police, Friday (11/19/2021). Photo by Humas MK/Ifa.

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Saturday, November 20, 2021 | 06:57 WIB

YOGYAKARTA, Public Relations—Constitutional Justices Saldi Isra and Suhartoyo were panelists at the Constitutional Oration by the Yogyakarta Special Provincial Police on Friday afternoon, November 19, 2021 at the headquarters of the Yogyakarta Special Provincial Police. The region’s police and the Constitutional Court (MK) collaborated in organizing the event to improve the police’s understanding of the amendments to the Criminal Code (KUHP) and the Criminal Procedure Code (KUHAP) through the Court’s decisions.

Justice Saldi began his presentation by saying that the constitutional amendment in 1999-2002 had significant impacts on the state, including law enforcement. “With the amendment to the 1945 Constitution, it became more obvious who law enforcers are. The police force is one of the [law enforcement] institutions mentioned explicitly in the Constitution,” he said.

He explained that before the amendment, the judiciary only consisted of the Supreme Court (MA) and the courts under it. “We used to have the Supreme Court [as the judiciary]. However, after the Constitution was amended, we [also] have the Constitutional Court as one of the holders of the judicial power,” he said.

He also said that the Constitutional Court does not have courts under it, unlike the Supreme Court. The Constitutional Court is only located in Jakarta.

He added that since its inception, the Constitutional Court has received around 1,500 judicial review cases.

Implications of Decisions

Meanwhile, Constitutional Justice Suhartoyo said the Court’s judicial review authority over laws has greatly influenced the legal world, especially criminal law. Many of its decisions have amended norms of the criminal law formally and materially.

He explained these changes include new norms or interpretations of criminal norms, changes of articles, changes in the definitions of certain criminal offences, and revocation of certain criminal norms (decriminalization).

The sources of written criminal law in Indonesia, he added, are the Criminal Code (KUHP), the Criminal Procedure Code (KUHAP), laws that amend/add to the KUHP, specific criminal laws, and other criminal regulations outside of the criminal laws.

The Constitutional Court Decision No. 006/PUU-V/2007, Justice Suhartoyo added, ruled that insulting the government in public is not a crime because the definition of the criminal offense in Articles 154 and 155 of the KUHP is a formal offense, which required the fulfilment of the element of prohibited acts (strafbare handeling) without correlating the acts with their consequences. As a result, the articles may lead to a tendency of abuse of power because it can easily be interpreted by the authorities arbitrarily. The president and vice president are not allowed to receive legal privileges that set them apart from the general public as the holders of the highest sovereignty, except in order to support their functions.

Legal uncertainty (rechtsonzekerheid) may arise due to the interpretation of whether a statement or opinion constitutes criticism or insult to the president and/or vice president. The articles in question negate the principle of equality before the law, the principle of legal certainty, and reduces freedom to express thoughts and opinions and freedom of information.

The criminal penalty stipulated in Article 134 is a maximum of six years in prison, which can be used to hinder 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 11/22/2021 10:57 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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