Petitioner Zico Leonard Djagardo Simanjuntak with legal counsels Rustina Haryati dan Angela Claresta Foek after the petition revision hearing of Thursday the material judicial review of Law No. 1 of 2023 of the Criminal Code, (1/25/2022). Photo by MKRI/Ifa.
Wednesday, January 25, 2023 | 15:17 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held another judicial review hearing 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 on Wednesday, January 25, 2023. The hearing for case No. 1/PUU-XXI/2023 petitioned by advocate Zico Leonard Djagardo Simanjuntak was presided over by Justices Suhartoyo (panel chair), Arief Hidayat, and Enny Nurbaningsih.
Simanjuntak conveyed the revisions to the petition including addition to the Court’s authority in adjudicating the case. The Court, he argued, should refer to its authority as the guardian of constitutional rights, thus it is authorized to review both the old and new Criminal Law if any citizen is impacted by the enactment of said law. “Should there be a victim and only then the new KUHP can be reviewed in the Constitutional Court or should anyone be criminalized before it can be petitioned to the Court? Then, what good does judicial review do if people are affected although those articles are declared unconstitutional? Quoting the Ministry of Law and Human Rights, the three-year delay is for the dissemination of the new KUHP. Therefore, the Constitutional Court reviews articles in the new KUHP starting today,” he said.
Next, legal counsel Rustina Haryati talked about the posita by explaining case No. 46/PUU-XVI/2016. Another legal counsel, Angela Claresta Foek, read out the petitum, “One, to accept and grant the Petitioner’s petition entirely. Second, to declare 433 paragraph (3) of Law No. 1 of 2023 on the Criminal Code in violation of the 1945 Constitution and not legally binding conditionally if not interpreted to mean ‘acts as referred to in paragraphs (1) and (2) shall not be penalized if they are committed in the public interest or for self-defense or are a result of an assessment, opinion, evaluation, or a fact.’ Three, to declare, mutatis mutandis, point 2 above also applies to Article 434 paragraph (2) of Law No. 1 of 2023 on the Criminal Code. Four, to declare Article 509 letters a and b of Law No. 1 of 2023 on the Criminal Code in violation of the 1945 Constitution and not legally binding conditionally. Five, to order the inclusion of the decision in the State Gazette of the Republic of Indonesia as it should be, or if the constitutional justices have other opinions, to hand down a decision as fairly as possible (ex aequo et bono),” she said.
Also read: Advocate Challenges Provision on Libel in Latest Criminal Code
The Petitioner, Zico Leonard Djagardo Simanjuntak, had previously explained that in 2019 while he was a law student of the University of Indonesia, he 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).
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.”
At the preliminary hearing on Thursday, January 12, 2023, 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.
Writer : Sri Pujianti
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 1/30/2023 08:01 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.
Wednesday, January 25, 2023 | 15:17 WIB 465