Provisions on Defamation against State Officials Challenged

Feri Amsari and colleagues representing the Petitioners at the preliminary hearing of the material judicial review hearing of the Criminal Code and the EIT Law, Tuesday (8/22/2023). Photo by Humas MK/Fauzan.

JAKARTA (MKRI) — The defamation case against Coordinating Maritime Affairs and Investment Minister Luhut Binsar Pandjaitan implicating human rights activists Haris Azhar and Fatiah Maulidiyanti ended up in the Constitutional Court (MK). Haris Azhar, Fatiah Maulidiyanti, the Indonesian Legal Aid Foundation (YLBHI), and the Alliance of the Independent Journalists (AJI) have filed a material judicial review petition of Law No. 1 of 1946 on the Criminal Code (KUHP) in conjunction with Law No. 4 of 1976 on the Amendment and Addition to Articles in the Criminal Code Relating to the Expansion of the Applicability of Provisions on Criminal Law, Aviation Crimes, and Crimes against Aviation Facilities/Infrastructure in conjunction with Law No. 27 of 1999 on the Amendment to the Criminal Code Relating to Crimes against State Security and Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law). The articles challenged are Article 14, Article 15, and Article 310 paragraph (1) of the Criminal Code and Article 27 paragraph (3) in conjunction with Article 45 paragraph (3) of the EIT Law. This preliminary hearing for case No. 78/PUU-XXI/2023 took place on Tuesday, August 22, 2023 in the plenary courtroom.

On site at the hearing, legal counsel Feri Amsari asserted that the Petitioners challenge Article 14 and Article 15 of Law No. 1 of 1946, a law enacted in the beginning of the independence days, that they believe needs to be reviewed as it contradicts the principles of constitutional democracy built in the beginning of the Reform era.

“We understand very well, Your Honors, that these articles have been challenged, and ruled, numerous times. However, in this case, we will convey the concrete issue the petitioners experienced and we hope we will get a ruling that protects our petitioners’ constitutional rights,” Feri said before the panel chaired by Constitutional Justice Suhartoyo.

In their petition, Haris Azhar and Fatiah Maulidiyanti (Petitioners I and II) argue that their constitutional rights have been impaired due to the articles being petitioned. They believe those articles have criminalized them, whose work is focused on promoting human rights and the eradication of corruption, collusion, and nepotism (KKN). They also argue that the a quo articles were in fact used to criminalize those who critique of state officials and government policies. Petitioners I and II claimed that law enforcement officials prioritized criminal proceedings against them rather than following up, examining, and adjudicating cases that actually matter.

On September 22, 2021, Petitioners I and II were reported to Greater Jakarta Metropolitan Regional Police (Polda Metro Jaya) by the Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan with report No. STTLP/B/4702/IX/2021/SPKT/POLDA METRO JAYA for their discussion of the results of the Civil Society Coalition’s political-economic study of military deployment in Papua. They asserted that they aimed at publishing the results of the Coalition’s research, criticizing the involvement of officials or officers or retired Indonesian National Army (TNI AD) members behind gold mining businesses or regional exploitation plans. “Such criminalization has clearly violated the constitutional rights of Petitioners I and II, which are explicitly guaranteed and protected by the 1945 Constitution,” Feri said.

Therefore, Feri added, the Petitioners hoped the Court would accept and grant their provisional petition. “In addition, [the Petitioners request that the Court] order the East Jakarta District Court to stop and postpone the examination of cases No. 202/Pid.Sus/2023/PN Jkt.Tim and No. 203/Pid.Sus/2023/PNJkt.Tim until the Constitutional Court’s judicial review decision [of this case],” he said.

Next, legal counsel Shaleh Al Ghifari said the provisional petition is meant to protect the Petitioners’ constitutional rights, in this case Petitioners I and II, and to demand that the Constitutional Court perform its duty as the protector of human rights, democracy, and the citizens’ constitutional rights as well as carry out checks and balances.

“Haris and Fatiah, in this case Petitioners I and II, are the defendants undergoing trial at the East Jakarta District Court. Without intending to compel the Constitutional Court to judge the concrete case, the reason why Petitioners I and II became defendants is because of their criticism—both in writing and through podcasts—of public officials, namely the Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan. Because of their criticism of public officials, both of them were charged and subjected to the articles being petitioned. So, to provide legal certainty for both of them, we ask that the Court stop, in the sense of postpone, the case Petitioners I and II are implicated in,” he said.

In their petition, the Petitioners request that the articles petitioned be declared unconstitutional and not legally binding.

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih said one of the Petitioners is a legal entity and, thus, must submit its statute/bylaws. “For a legal entity, please provide its statute/bylaws [that specify] who is actually authorized to represent the institution or legal entity in question. Show in [the evidence] and mention it [at the next hearing],” she said.

She also asked that the Petitioners exercise caution in talking about whether there is an issue of norm implementation or constitutionality. “[The elaboration] must indeed be able to provide a solid argument to convince the Constitutional Court,” she said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh said the Court’s authority is very limited, unlike that in other countries. The Constitutional Court adjudicates the constitutionality of statutory norms. “In my opinion, there is something new with this petition. The [elaboration of] legal standing [has not specified] that there are four petitioners,” he said.

Next, Constitutional Justice Suhartoyo asked that the petitum be simplified for better understanding. “There is no need to explain all touchstones one by one,” he said.

Before adjourning the session, the panel announced that the Petitioner had 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, September 4 at 09:00 WIB.  

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : M. Halim
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.

Tuesday, August 22, 2023 | 16:13 WIB 337
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  • Majelis Sidang Panel yang di ketuai oleh Hakim Konstitusi Enny Nurbaningsih. Foto Humas/Fauzan

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