Petitioners’ Witness Reveals Arrest Process and Twitter Posts at Hearing

The Petitioners’ witnesses taking oath at a judicial review hearing of the Criminal Code and EIT Law, Monday (10/30/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Constitutional Court (MK) held another judicial review hearing 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 (Law No. 1 of 1946); the Criminal Code (KUHP); and the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law) on Monday, October 30, 2023 in the plenary courtroom. The case No. 78/PUU-XXI/2023 was filed by Haris Azhar and Fatiah Maulidiyanti (Petitioners I and II), who are defendants undergoing trial at the East Jakarta district court.

At the hearing, first witness for the Petitioners, Jumhur Hidayat, said that on October 13, 2020 at his home, he was arrested by more than 30 people claiming to be police officers from the Cyber Crime Directorate of the National Police’s Criminal Investigation Department (Dittipidsiber Bareskrim) while undergoing postoperative recovery.

“At that time I was recovering from surgery, still bandaged and bleeding. Not only was I arrested, my belongings and those of my children were also confiscated without a confiscation report. It was only on October 14, 2020 that my family obtained an arrest warrant from the investigator. So, my arrest was based on an arrest order,” he said.

He explained that he was identified as a suspect and defendant as a consequence of a tweet from his Twitter (now X) account @jumhurhidayat on August 25, 2020. “I made a tweet saying ‘Workers unite to reject Omnibus Law, which will turn Indonesia into a colonized nation.’ Then, on October 7, 2020, I tweeted again that this law was indeed for primitive PRC investors and greedy entrepreneurs.’ I said that a civilized investor would act a certain way, then provided a link to a Kompas headline of ‘35 Foreign Investors Express Concern on the Ratification of the Job Creation Law,’” he said.

In his opinion, the post did not contain insults against any particular individual or group. At the trials, witnesses such as the chairperson of the Indonesian Employers Association (APINDO) and the vice chairperson of the Indonesian Young Entrepreneurs Association (HIPMI), who were representatives of entrepreneurs, said they were not offended by the tweets. At the trials, the witnesses said it was normal for there to be a difference of opinion between employers and laborers.

However, the aforementioned headline is a journalistic product subject to Law No. 40 of 1999 on the Press, which states that parties who object to the article could refute it and that there is a regulated mechanism for it. However, until he was sentenced by the South Jakarta district court, there was no mechanism to response to the article.

Jumhur said the South Jakarta district court found him guilty and proven to have committed a crime based on Article 15 of Law No. 1 of 1946 due to the tweet.

The court decision mentioned that his action had fulfilled the element of “broadcasting uncertain news or excessive or incomplete news” because the judges believed he had not conveyed his opinion the way a person educated in manpower issues would have. Therefore, the judges considered the article incomplete. They considered the tweet having fulfilled the element of “it is reasonable to suspect that such news will or can easily cause disturbance in the public” because Jumhur only made a sentence without further explanation, while he is an expert in manpower and understands the psychology of workers. So, the judges believed he had the intent to provoke a mass reaction and cause a disturbance.

Plaintiff-Reported Relation

Meanwhile, the second witness, Nurkholis Hidayat, explained that the plaintiff-reported relation between the plaintiff or the aggrieved with the reported or the one criminalized in this case was unequal and non-parallel. Instead, it was a relation between a public official and the people who voiced their opinions. This unequal relation formed another pattern.

“Secondly, there is a tendency for law enforcement officials, starting from the investigation and prosecution and even in trial, not to be independent because they are dealing with a powerful public official,” he said.

Thirdly, Nurkholis said, the most consistent pattern is that the prosecution aims to silence public participation. Some of these cases range from public participation of anti-corruption activists who try to demand government transparency and expose corruption to criticizing laws and regulations, state institutions, and other things.

“I will explain what factually happened in the case of Haris and Fatiah, who have been charged and are currently tried in the East Jakarta district court with the plaintiff being Luhur Binsar Pandjaitan. They were prosecuted for Articles 14 and 16 and Article 310 paragraph (1) [of the Criminal Code]. The investigators worked for approximately a year in processing the report from the plaintiff. They ignored several things in relation to the SKB (joint decree) on the EIT Law. The process of restorative justice and mediation was stopped unilaterally by the investigators without agreement between the parties,” he said.

The Petitioners challenge Articles 14 and 15 of Law No. 1 of 1946 materially. The law is a law from very early days of independence that we feel needs to be challenged because it contradicts the principles of constitutional democracy that were built at the beginning of the Reform era. They also challenge Article 310 paragraph (1) of the Criminal Code (KUHP).

Also read:

Provisions on Defamation against State Officials Challenged

Petitioners of Provisions on Defamation Revise Petition

Hariz Azhar Expresses His Hope to Constitutional Justices

House: Criminal Provisions in EIT Law Set Out in Criminal Code

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 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.

The Petitioners hoped the Court would accept and grant their provisional petition and 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 hands down a decision on this case. They also request that the articles petitioned be declared unconstitutional and not legally binding.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : M. Halim
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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.

Monday, October 30, 2023 | 15:54 WIB 321