Constitutionality of Provisions in New Criminal Code Challenged

The judicial review hearing of Law No. 1 of 2023 on the Criminal Code (KUHP), Tuesday (2/7/2023). Photo by MKRI/Panji.

Tuesday, February 7, 2023 | 16:03 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Articles 256, 603, and 604 of Law No. 1 of 2023 on the Criminal Code (KUHP) against the 1945 Constitution on Tuesday, February 7, 2023 in the panel courtroom. The petition No. 10/PUU-XXI/2023 was filed by Andi Redani Suryanata and several other university students.

Andi Redani Suryanata, one of the petitioners, said virtually that the Petitioners are expressly against corruption, including in university environment. They believe the fight against corruption in Indonesia is futile and restricted because the legal system has created weaknesses in the eradication of corruption and because criminal sanctions for corruption in the new Criminal Code are weak.

“Weak sanctions against corruption can weaken the eradication of corruption. In addition, the Petitioners’ aspirations as Indonesian citizens were not heard, where the Petitioners opposed the enactment of the problematic articles in the a quo case, which showed obscurity and deliberate and systematic weakening of punishment for corruption,” he said at the hearing chaired by Constitutional Justice Suhartoyo.

Suryanata emphasized that the Petitioners has also protested against problematic policies such as the problematic articles in the a quo case. They are worried that the enactment of the articles would sow fear in anyone who wishes to join a protest for fear of prosecution under those articles.

Another petitioner, Muhammad Adam, said the articles could potentially criminalize members of the public due to ambiguity of who or what is meant by “prior notification to the authorities.”

“It is worth questioning what is meant by ‘notification’ in the a quo articles, whether it’s notification to the authorities, coordination with the authorities, or request for permission from the authorities,” he explained.

He argued that the word “notification” did not meet the principle nullum crimen, nulla poena sine lege certa [(“no crime, no punishment without law”)] because the criminal formulation in the a quo articles did not provide clear arrangements and legal certainty, and could potentially lead to multiple interpretations by law enforcement officials. It could also increase potential for criminalization of members of the public who carry out protests.

Adam asserted that the a quo articles contained the phrase “causing disturbance to the public interest, causing chaos, or commotion in society,” which cannot be avoided when carrying out actions in public places, such as marches, protests, or rallies, which may disrupt public order, cause traffic jams, and lead to road access diversions. During protests and rallies there could be clashes between members of the public and security forces, leading to chaos and commotion. Therefore, the a quo articles would potentially criminalize members of the public.

The Petitioners also emphasized that the criminal act of corruption harms all citizens and the state, so the Criminal Code should stipulate that the perpetrators can be punishable by death in the hopes to deter such crimes and reduce corruption cases.

“Therefore, it is appropriate that to prevent and deal with criminal acts of corruption, which are extraordinary crimes, the main threat stipulated in the a quo articles be capital punishment, not imprisonment,” he said.

Justices’ Advice

Constitutional Justice Arief Hidayat advised the Petitioners to explain the substance of the Constitutional Court’s jurisdiction. “Is it true that the Court has the authority to review the Criminal Code, which will take effect in three years. There is an explanation, but there needs to be a more complete explanation of the construction of the petition on the Criminal Code,” he said. He also asked them to explain the constitutional rights that had would be harmed due to the enactment of the articles.

Meanwhile, Constitutional Justice Enny Nurbaningsih observed that the signatures in the power of attorney were different from those in the petition. “I’d just like to remind all of you that as students, younger generation, you take caution with signatures. Do not forge any signatures. Actions can be taken if the signatures are found to be fake. So, please, once again, because there are quite a lot of petitions, twenty of them, you might have difficulty getting all signatures, but don’t ever fake one,” she added.

She also requested that they describe their legal standing and conditions for constitutional damages. “You have to pay close attention to whether there are those that can be classified as one or something different. It depends on how you explain each profiles. There are definitely differences in the profiles of each of these students. Please pay attention, because you only mentioned that the petitioners are students,” she said.

Before adjourning the session, Constitutional Justice Suhartoyo informed the Petitioners that they had 14 workdays to revise their petition until Monday, February 20, 2023 at 14:00 WIB.

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

Translation uploaded on 2/10/2023 11:47 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.

Tuesday, February 07, 2023 | 16:03 WIB 187