Leonardo Siahaan, the Petitioner, reading out the subject matter at the preliminary hearing of the material judicial review of Law No. 1 of 2023 on the Criminal Code, Thursday (4/13/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The provisions on criminal punishment for insulting the state emblem as referred to in Article 237 letter c of Law No. 1 of 2023 on the Criminal Code (KUHP) were challenged materially in the Constitutional Court (MK). Leonardo Siahaan and Ricky Donny Lamhot Marpaung filed the petition No. 36/PUUXXI/2023. They also challenge Article 100 paragraph (1) and Article 256 of the Criminal Code.

At the preliminary hearing took place on Thursday, April 13, 2023 in the plenary courtroom, Siahaan who attended the hearing in person, alleged that Article 237 letter c of the Criminal Code was similar to Article 57 letter d of the Criminal Code that the Court had annulled. He believes that the article shows the Government’s non-compliance with the Constitutional Court Decision No. 4/PUU-X/2012.

“There is no difference, [the articles] are exactly the same, but ironically that Article 57, which has been declared unconstitutional, was somehow re-enacted and re-incorporated into the Criminal Code in Article 237. This indicates that the Government did not comply with the Constitutional Court’s decision or, in short, the Court’s decision was considered a mere formality, so the Government did not implement the Decision No. 4/PUU-X/2012. It is very ironic that the Government did not recognize or implement the decision and incorporated it into the Criminal Code,” Siahaan said before the panel chaired by Constitutional Justice Arief Hidayat.

Restricting Freedom of Expression

In their petition, the Petitioners also question the criminal punishment for those who protest without a permit as stated in Article 256 of the Criminal Code. The Petitioners believe that the article has caused potential harm and threatened freedom of expression as guaranteed in Article 28 of the 1945 Constitution. 

“The Petitioners believe and worry about potential constitutional impairment. If at any time there are massive protests against government corruption, KKN (corruption, collusion, nepotism), or arbitrary act, similar to the 1998 protests; if similar protests occur in the future without prior notification to the authorities; [protesters] will be subject to unlawful arrests and abuse of power by the police in handling protests without permit,” Siahaan explained.

The Petitioners also take issue with Article 100 of the Criminal Code, which they believe could cause constitutional harm where the death penalty is implemented but with a probationary period. They argue that the death penalty has been considered the most effective punishment to provide a sense of justice and prevent the recurrence of similar crimes. It will deter potential criminals, thus create control and stability in the community. Based on these matters, the Petitioners requested that the Court declare Article 100, Article 237 letter c, and Article 256 of the Criminal Code unconstitutional and not legally binding.

Justices’ Advice

Responding to the petition, Constitutional Justice Manahan M. P. Sitompul reminded the Petitioners that material losses in judicial review arise because of the enactment of a law. “The constitutional loss experienced by the Petitioners is also due to the enactment of the norm being reviewed. That should be considered if you want to continue this petition,” he advised.

Meanwhile, Constitutional Justice Wahiduddin Adams highlighted the request that the three articles be declared to not legally binding. He reminded them that even though it had been passed, the Criminal Code would only take effect 3 years after it was enacted. He requested that they reconsider this matter.

Before adjourning the session, Constitutional Justice Arief Hidayat announced that the Petitioners had 14 workdays to revise the petition and submit it to the Registrar’s Office on Wednesday, April 26 at 13:00 WIB.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

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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