Experts Highlight Potential Danger of Hoaxes and Restriction on Freedom of Speech

JAKARTA (MKRI) — The level of literacy and prudence of Indonesian society is still subpar, so it is dangerous to implement Article 171 of Law No. 1 of 1946 on the Criminal Code (KUHP) broadly.

This was conveyed by a law lecturer of the Faculty of Humanities of Bina Nusantara University, Vidya Prahassacitta, who was presented as an expert by Haris Azhar, Fathiah Maulidyanty, and YLBHI, the Petitioners of case No. 78/PUU-XXI/2023 on Tuesday, November 14, 2023 in the plenary courtroom. The case concerns 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).

“Because… you will be punished for forwarding news that is not necessarily true. And there have been many such cases,” Vidya said at the hearing presided over by Chief Justice Suhartoyo and the other eight constitutional justices.

Vidya also asserted that the criminal offense of spreading inaccurate news in the Criminal Code is formulated broadly and vaguely. The formulation of the proprate dolus proparte culpa offense in Article 15 of the Criminal Code risks it becoming a catchall article.

“This is contrary to the principle lex certa, that acts prohibited in the law must be detailed clearly. When the formulation of a criminal offense is unclear, it is contrary to the principle of legality, which is indirectly recognized in Article 28D paragraph (1) of the 1945 Constitution, which provides recognition, guarantee, protection, and legal certainty,” she said.

Criminalizing Netizens

Vidya also said that the immoral act of spreading fake news harms society by misleading or manipulating others or the public and causing disturbances to public order. According to Article 19 paragraph (3) of the ratified International Covenant on Civil and Political Rights (ICCPR), a public statement can only be restricted if it harms other people, society, or state security.

“Article 14 and Article 15 of Law No. 1 of 1946 is used to punish the hoaxes on any material circulating in public. These articles are not specifically aimed at activists or public figures who criticize government policies but at the general public, especially internet users who discuss issues that are hot at that time, for example the general election (2018) or the COVID-19 pandemic (2020-2021),” said Vidya.

The Petitioners also presented Herlambang P. Wiratraman, a lecturer of the Constitutional Law Department and head of the Center for Law and Social Justice Studies (LSJ) of the Law Faculty of Gadjah Mada University. In his testimony, he said that the articles being challenged often used to criminalize. “It has a very criminal perspective and not out of the colonial perspective,” he said.

Herlambang said that freedom of expression is also specifically regulated, both as a result of ratification of international treaties, i.e. Article 19 of the ICCPR of 1966, which was ratified in Law No. 12 of 2005, as well as through two related laws—Law No. 9 of 1998 on Freedom of Expression in Public, which basically regulates the procedure for expressing opinions in public, and Law No. 39 of 1999 on Human Rights, which also contains a number of articles on freedom of expression.

Meanwhile, the Petitioners’ witness, Hisyam Fakhrul Ulum, stated that on Friday, January 20, 2023, residents of Pakel Village received a summons from the East Java Police. It declared three Pakel residents as defendants: Mulyadi (village head), Suwarno (hamlet head), and Untung (hamlet head). They were charged under Articles 14 and/or 15 of the Criminal Code. The summons requested that they appear at the East Java Police on Thursday, January 19, 2023. However, the summons was not received until Friday, January 20, 2023. Suparmo, a Pakel villager and chairman of Tim Peduli Pakel, the advocacy team for Pakel Village, had attempted to plant thousands of banana trees in the 1929 Deed area controlled by PT Bumi Sari, and was then charged with trespassing the plantation in January 2019 by Djohan Sugondo, the owner of PT Bumi Sari. In response, Pakel residents and their legal team wrote to President Jokowi, Minister of Agrarian Affairs and Spatial Planning/National Land Agency (ATR/BPN), Chief of Police, National Police Commission, and Human Rights Commission on February 1, 2023. They requested President Jokowi and other key parties to resolve the issue and free Mulyadi, Suwarno, and Untung.

Furthermore, Hisyam explained, the judges of the Banyuwangi District Court had ruled in Decision No. 206/Pid. B/2023/PN Byw, 207/Pid. B/2023/PN Byw, 208/Pid. B/2023/PN Byw that the defendants had been legally and convincingly proven guilty of committing the crime of broadcasting false news or notifications and intentionally causing a disturbance among the people, as the public prosecutors indicted. As a result, the defendants were sentenced to five years and six months in prison, with their arrest and detainment periods deducted from the sentence.

“[During questioning witnesses online] through Zoom, the connection was suddenly cut off when exploring witnesses’ statements that do not match. In the trials, there were often restrictions, where online protests were allowed but with visitor restrictions. The visitor restrictions apply to the victims’ families and residents but do not apply to companies,” he explained.

Meanwhile, the second witness, Nurkholis Hidayat, explained that there was unequal power dynamics between the complainant or the aggrieved and the reported or the criminalized, i.e. relations between a public official and the people who voice their opinions. This power imbalance has formed another pattern. “Secondly, there is a tendency that law enforcement officers, starting from the investigation and prosecution process and even in trials, tend not to be independent because they were dealing with a powerful public official,” he said.

Third, he added, there is a consistent pattern where the prosecution process serves to silent the public. This is evident in the efforts by anti-corruption activists to demand government transparency and reveal corruption, to criticize legislation and state institutions.

“I’d like to explain what actually happened in the case of Haris and Fatiah, who are currently charged and being tried in the East Jakarta District Court by complainant Luhut Binsar Pandjaitan. Both were charged with violating Articles 14 and 16, and Article 310 paragraph (1). The investigators worked for about a year to process the report from the complainant, and several things were ignored by the investigators in this case, such as the SKB (joint decree) regarding the EIT Law, restorative justice process, and mediation process, which were stopped unilaterally by the investigators without any agreement from the parties,” he said.

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

Petitioners’ Witness Reveals Arrest Process and Twitter Posts at Hearing

The Petitioners challenge Articles 14 and 15 of Law No. 1 of 1946 (Criminal Code). “This is a law enacted in the beginning of the independence days, which we believe needs to be reviewed as it contradicts the principles of constitutional democracy built in the beginning of the Reform era,” said legal counsel Feri Amsari. They also challenge Article 310 paragraph (1) of the Criminal Code.

Haris Azhar and Fatiah Maulidiyanti (Petitioners I and II) are undergoing trials at the East Jakarta District Court for criticizing Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan through media. They request that the Court provide legal certainty for them by delaying their criminal case. They believe their provisional petition to the Court is a manifestation of guarantee, legal certainty, and power balance between the public and the state. They argue that the request for a delay of their criminal case is warranted.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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.

Wednesday, November 15, 2023 | 15:24 WIB 317