Advocate Challenges Provision on Libel in Latest Criminal Code

Constitutional Justices Suhartoyo, Arief Hidayat, and Enny Nurbaningsih opening the panel preliminary hearing of the material judicial review of the Criminal Code, Thursday (1/12/2022). Photo by MKRI/Ifa.

Thursday, January 12, 2023 | 16:56 WIB

JAKARTA (MKRI) — Advocate Zico Leonard Djagardo Simanjuntak was once sued by Grab Indonesia, who even appealed the high court’s appeal decision to the Supreme Court, for libel. It compelled him to request the judicial review of Article 433 paragraph (3), Article 434 paragraph (2), and Article 509 letters a and b of Law No. 1 of 2023 on the Criminal Code (KUHP) against Article 28D paragraph (1) of the 1945 Constitution to the Constitutional Court (MK). The preliminary hearing for case No. 1/PUU-XXI/2023 took place on Thursday, January 12, 2023, with Constitutional Justices Suhartoyo, Arief Hidayat, and Enny Nurbaningsih presiding.

Article 433 paragraph (3) of the Criminal Code reads, “The acts referred to in paragraphs (1) and (2) shall not be penalized if they are committed in the public interest or for self-defense.”

Article 434 paragraph (2) reads, “Proof of truth for the allegation as referred to in paragraph (1) shall only be carried out in the event that a. the judge considers it necessary to examine the truth of the allegation in order to consider the defendant’s statement that the defendant committed the act in the public interest or because he/she was forced to defend himself/herself; or b. officials accused of committing something while carrying out their duties.

Article 509 reads, “Shall be sentenced to a maximum imprisonment of 1 (one) year or a maximum fine of category III: a. an advocate who includes or requests to include in a letter of claim or petition for divorce or petition for bankruptcy information regarding the location of residence or the residence of the defendant or debtor, when it is known or reasonably suspected that the information is contrary to the actual situation; b. a husband or a wife who files a lawsuit or petition for divorce that provides information that is contrary to the actual situation to the advocate as referred to in letter a: or c. a creditor who submits a petition for bankruptcy that provides information that is contrary to the actual situation to the advocate as referred to in letter a.

Through legal counsel Rustina Haryati, the Petitioner revealed that in August 2019 when he was still a university student, he had joined a challenge organized by Grab Indonesia and won a one-million-rupiah reward. He completed the challenge but he didn’t receive the reward. The company kept promising to give the reward but, in the end, failed to do so.

Then, on Tuesday, September 3, 2019, through legal counsel David Tobing the Petitioner filed a lawsuit to the Central Jakarta District Court, which was covered by the media, who asked Grab Indonesia for confirmation but did not get any response although the company contact had read their messages. The next day, on Wednesday, September 4, 2019, the company gave the Petitioner the award in question.

The Petitioner couldn’t seek any more legal remedies on the issue but on February 5, 2020 he received a legal notice from Grab Indonesia through Rajamada & Partners and sought a billion compensatory damages, claiming he had defamed the company. He ignored the notice. The company then filed a lawsuit to the West Jakarta District Court on March 10, 2020, where it sought 500 million compensatory damages for the legal services offered by Rajamada & Partners, the tax receipt for which they did not show in court. The Petitioner this far-fetched lawsuit was filed only to criminalize him.

The company’s lawsuit to the district court and subsequent appeal to the high court were rejected. However, they persevered and filed a cassation appeal, which was also rejected on December 6, 2022. These cases show that the Petitioner is a law-abiding citizen with good intention despite allegation of libel by such a big company.

The Petitioner, Rustina said, had not worried for any more criminal suit by the company using the EIT Law, thanks to a joint decree by the Ministry of Communication and Informatics, the Attorney General, and the Police Chief. However, the latest Criminal Code had left Article 27 paragraph (3) of the EIT Law null and void and stipulates that the acts as referred to in Article 433 paragraphs (1) and (2) “shall not be penalized if they are committed in the public interest or for self-defense.”

“This potentially led to the Petitioner not receiving fair legal protection and be reported to the police, be summoned by the police, be examined by the police, despite not being guilty of anything,” she explained. 

Justices’ Advice

Constitutional Justice Enny Nurbaningsih stated that the object of the petition was unclear and advised that it be clarified. She also observed that the Criminal Code being petitioned will be in force in three years after its promulgation.

“How can you argue the constitutional impairment as the articles being petitioned are not binding yet. Only a concrete case left and it has been ruled by the Court,” she said.

Meanwhile, Constitutional Justice Arief Hidayat observed that the Court’s jurisdiction only extends to the old Criminal Code, not the new one being petitioned, which is not yet in force and binding the citizens given that it will not be until three years. Therefore, he expected that the Petitioner could argue the Court’s authority over the case. He also advised the Petitioner to understand the potential and actual impairment due to the enactment of the a quo law. “Also review the academic text of the drafting of the new Criminal Code, especially relating to the norms being petitioned,” he said.

Next, Constitutional Justice Suhartoyo added that the Court has made a stance on criminal policy, which must be settled with the legislatures. “Therefore, the Court has made a stance whether the Court can rule this denied right,” he said.

After giving their advice, the justice panel gave the Petitioner until Wednesday, January 25, 2023 at 11:00 WIB to revise the petition and submit it to the Registrar’s Office to schedule the next hearing.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/17/2023 07:56 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.

Thursday, January 12, 2023 | 16:56 WIB 201
  • Budi Wibowo Halim (Pemohon) menyampaikan pokok-pokok perbaikan atas permohonan Perkara Nomor 117/PUU-XXI/2023. Foto Humas/Ifa

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  • Majelis Sidang Panel yang di ketuai oleh Hakim Konstitusi Enny Nurbaningsih. Foto Humas/Fauzan

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