Expert: Criminal Code’s Articles 14-15 Threatens Democracy

Senior journalist Bambang Harymurti testifying as an expert for the Petitioner in the case against the Criminal Code (KUHP) and the EIT Law, Thursday (12/21/2023). Photo by MKRI/Panji.

JAKARTA (MKRI) — Testifying as an expert for the Petitioners of case No. 78/PUU-XXI/2023, senior journalist Bambang Harymurti said that the implementation of Articles 14 and 15 of Law No. 1 of 1946 on the Criminal Code (KUHP) has jeopardized the continuity of democratic life, especially the citizens’ constitutional right to convey information to the public. Therefore, he argued that the Court should declare them unconstitutional and null and void.

“The danger of implementing this law could impact the continuity of the nation’s democratic life, especially the citizens’ constitutional rights to convey information to the public, including my constitutional rights when I was charged with Article 14 two decades ago,” said Bambang, who is also an expert for the Press Council, during the hearing on Thursday, December 21, 2023 in the Constitutional Court (MK).

When he was Chief Editor of Tempo magazine in 2004, Bambang was sentenced to one year in prison for defamation. However, the Supreme Court overturned the verdicts issued by the Jakarta District Court and the High Court with the consideration that the Press Law was lex specialis or a special rule above the Criminal Code (KUHP).

In addition, Bambang cited one more reason to declare those norms unconstitutional. Law No. 1 of 1946 was a transitional legal product in the emergency era, so it is no longer relatable for the current normal conditions.

“Moreover, several articles in this law infringe on the citizens’ constitutional rights because our Constitution has been amended,” said Bambang, who was also vice chairman of the Legislative Body that drafted Law No. 40 of 1999 on the Press.

Public Offices Have No Feelings

At this hearing, the Petitioner also presented Fernando M. Manullang as an expert. Manullang explained that a subject in law is a subject that has been granted rights and obligations by the legitimate power. According to Austrian jurist Hans Kelsen, the grantor of power (legal organ) is fictie. In Swedish philosopher Hägerström’s view, this kind of power is above human beings and not real because it is not psychological. The subject and organ of law in Hägerström’s perspective are both nil because they have no emotions.

The implication, Manullang added, is how could a legal subject such as a public office, which Hägerström considered nihilistic, have feelings? In other words, he questioned how is it possible for people in public offices, who come and go, to claim to have felt insulted when their office clearly has no feelings?

“If an official is unable to see that the scientific concept of law has taken the idea of justice, including the law, beyond us, resulting in the loss of insight into justice, including the law, and then claims to be insulted as an official, I can presume that the official has pretended to own the office. There is a phrase for that: the chair-the position-is of one mind with the official and vice versa,” he said.

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at a hearing for case No. 78/PUU-XXI/2023 the judicial review hearing of Articles 14 and 15 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); Article 310 paragraph (1) of the Criminal Code (KUHP); and Article 27 paragraph (3) in conjunction with Article 45 paragraph (3) of the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law). In their petitum, the Petitioners request the Court to declare the articles unconstitutional and not legally binding.

The Petitioners for the case are human rights activists Haris Azhar and Fatiah Maulidiyanti, the Indonesian Legal Aid Foundation (YLBHI), and the Alliance of the Independent Journalists (AJI) (Petitioners I-IV). 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. In their provisional, the Petitioners hoped the Court would 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.

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Raisa Ayuditha
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.

Thursday, December 21, 2023 | 17:41 WIB 38