Constitutional law lecturer and laboratory chief of the University of Surabaya Hesti Armiwulan Sochmawardiah testifying as an expert for the Petitioners for case No. 78/PUU-XXI/2023, Tuesday (11/28/2023). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The consequences of an intentional action can differ from its intended purpose. Therefore, provocative communication (news/notices/messages) could potentially motivate people to cause commotion or chaos, said Afrizal, an expert presented by the Petitioners at the 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 Tuesday, November 28, 2023 in the plenary courtroom.

The hearing had been set for the testimonies of two experts, Afrizan and Hesti Armiwulan, presented by the Petitioners.

A lecturer of the sociology doctoral program at the Faculty of Social and Political Sciences of Andalas University, Afrizal stated that a person’s urge to engage in such actions is a consequence of the message. They might not have thought about engaging in such actions. In social movement, news/reports/messages provide a framing through which people label or interpret reality. News/reports/messages that can provoke commotion or riot are used as framing.

“Meanwhile, motivational framing is persuasive (evoking emotions). The persuasiveness of a framing depends on people’s interpretation of the text (symbols). According to phenomenology and symbolic interactionism theory, people’s interpretation of symbols (reading a text) is based on the knowledge they possess (in their minds). The use of knowledge for interpretation that results in perceptions and attitudes about something requires understanding a text, which leads to comprehension. People’s ability to understand a text also depends on the complexity and the context of the text. Complex texts (using poetic phrases and theoretical concepts) and texts without context (only words and phrases or a single sentence) are difficult to interpret, therefore, cannot motivate action,” Afrizal explained during the hearing chaired by Chief Justice Suhartoyo.

Furthermore, he stated that to evoke anxiety and consciousness, a message requires mobilization in the community. However, even if mobilization occurs, it is not sufficient to incite collective aggressive actions, since organizing and opportunities to engage in aggressive actions are also necessary.

He also explained Articles 14 paragraphs (1) and (2), and Article 15 of Law No. 1 of 1946 on the Criminal Code. These three articles pertain to the criminalization of disseminating false news or misinformation.  The multiple interpretations of the word “keonaran” (“disturbance”) within the articles can be used to criminalize citizens who criticize the authorities and businessmen. Although it can affect the consciousness of many people, fake news is unlikely to cause disturbances. Meanwhile, Article 15 could potentially be used to criminalize academics. Afrizal argued that these articles could potentially threaten freedom of expression, especially of academics and activists, thus undermining democracy in Indonesia. Therefore, he proposed that the three articles be revoked.

Guarantee of Human Rights Protection

Hesti Armiwulan Sochmawardiah said that human rights are inherent in humans. The state is an entity that is expected to ensure respect, protection, and fulfillment of human rights. From the history of the struggle for human rights, it is evident that the issues revolve around the power dynamics between individuals who possess power and those who do not. Human rights issues are about unequal power relations.

Hesti, who is a lecturer and the head of the constitutional law laboratory at the Law Faculty of the University of Surabaya, further explained that according to the principles of a democratic state, state administrators must consider the people’s real interest when formulating laws. State administrators function as conduits of the people’s interests. All of their actions are embodied in laws and regulations, and public policies must be based on the people’s interests. In a democratic state, state administrators are not allowed to make policies that do not align with the people’s interests, otherwise they would have committed abuse of power. Therefore, one of the fundamental principles of democracy is supervision by the people.

Hesti stated that every state of law must ensure, through legislation and its implementation, the protection and fulfillment of human rights, and ensure that there are legal sanctions for those who violate them. In other words, the essence of law is to guarantee the protection of human rights.

Laws created by legislative bodies serve as a tool for the state to achieve social order and to guarantee the protection and fulfillment of human rights. They should not be used as a tool to legitimize power and to strip people of the right to freedom from fear. In his book The Pure Theory of Law jurist Hans Kelsen argued that law is order and a system of rules about human behavior. The theory is a picture of law that is clean in its abstraction, and strict in its logic. Leaving aside ideological matters that are considered irrational, it should not be contaminated by political science, sociology, history, and discussions about ethics.

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The case No. 78/PUU-XXI/2023 was filed by Haris Azhar, Fatiah Maulidiyanti, the Indonesian Legal Aid Foundation (YLBHI), and the Alliance of the Independent Journalists (AJI) (Petitioners I-IV). At the preliminary hearing on Tuesday, August 22, 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—as well as Article 310 paragraph (1) of the Criminal Code (KUHP).

“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 the Petitioners’ constitutional rights,” Feri said.

Petitioners I and II are undergoing trial at the East Jakarta District Court because of their criticism, both in writing and through podcasts, of the Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan. Because of their criticism of said public official, both of them were charged and subjected to the articles being petitioned.

So, to obtain legal certainty, the Petitioners ask that the Court postpone the case Petitioners I and II are implicated in. Their provisional petition is their effort to find guarantee of protection and legal certainty and balance of power between the state and the people. In their petitum, the request that the a quo articles be declared unconstitutional and not legally binding.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Najwa Afifah Lukman/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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