Experts: Norms in Criminal Code and EIT Law vs. Protection of Human Rights

Another judicial review hearing of the Criminal Code (KUHP) and the EIT Law to hear two experts for the Petitioners, Wednesday (1/31/2024). Photo by MKRI/Ilham W. M.

JAKARTA (MKRI) — Constitutional law lecturer at Gadjah Mada University Yance Arizona testified as an expert for the Petitioners of case No. 78/PUU-XXI/2023 on the judicial review of the Criminal Code (KUHP) and Law on Electronic Information and Transactions (EIT). Yance said that the provisions in the Criminal Code and the EIT Law that the Petitioners challenge are in contrast with provisions on the protection of human rights within the 1945 Constitution.

“It is undeniable that the provisions of the Criminal Code and the EIT Law petitioned by the Petitioners are at odds with each the provisions on human rights protection,” he said at the tenth hearing on Wednesday, January 31, 2024 in the Constitutional Court’s (MK) plenary courtroom.

Yance said, the Constitutional Court and the Government would often review the conflicting norms against Article 28J paragraph (2) of the 1945 Constitution. The problem is that the principles of limitation in Article 28J paragraph (2) have never given any specific explanation. He said there are five principles or benchmarks in Article 28J paragraph (2): guarantee of recognition and respect for the rights and freedoms of others, moral considerations, religious values, security, and public order in a democratic society.

Therefore, Yance argued, a more specific explanation is needed to assess how the limitation of a right is in accordance with these five principles. However, if the subject matter of this petition is to be assessed, while considering the purpose and basis of the limitation of rights in the limitation clause, there are several things that can be stated. First, the provisions being petitioned (Articles 14, 15, 310 of the Criminal Code and ar1 27 paragraph (3) and Article 45 paragraph (3) of the EIT Law) are contrary to the principle of ensuring recognition and respect for the freedoms of others, if these provisions not only protect the freedoms of others (right-bearing subjects), but also their substance and application so far have also been used to give government officials, offices, and institutions immunity.

Second, the provisions being challenged should be reviewed in terms of its effect on moral—often related to ethics and manners. Nonetheless, it is necessary to formulate the assessment of moral considerations so that it does not apply arbitrarily due to the absence of clear actors who can determine moral truth in society. In addition, what needs to be examined is the malicious intent of the information and opinion conveyed by a person, rather than the error of the information.

Third, religious values are also a flexible and plural because there are different religions and even sects within each religion. Fourth, the principle of security is associated with a state of freedom from physical and psychological harm. Fifth, public order in a democratic society can be guaranteed by formulating criminal offenses as material offenses rather than formal offenses, so there are benchmarks of real consequences and causal relationships between actions and consequences.

Yance argued that a more concrete formulation of the principle or limiting provisions in Article 28J paragraph (2) of the 1945 Constitution is needed to ensure the protection and fulfillment of citizens’ rights. Without a clear benchmark, the limiting provisions can lead to excessive rights violations and can mute other human rights norms that have been guaranteed by the Constitution.

“If this happens, then our Constitution has turned into a ‘sham constitution’ as what has happened in authoritarian countries,” he said. 

Implementation of Limitation

The Petitioners also presented constitutional law lecturer and director of the Center for Human Rights Studies (Pusham) of the Islamic University of Indonesia Eko Riyadi to testify as an expert. Eko said that human rights review cases relating to the implementation of limitation to individual rights require two steps. First, the judiciary must determine whether there are individual rights that are restricted. Second, it must be determined whether such restriction is justified.

He explained that the assessment of justification lies on the proportionality testing, in which the restriction of individual rights is deemed proportional if it meets certain criteria such as a legitimate objective, a rational connection to the objective, the action is the least restrictive compared to other equally effective methods and is not a disproportionate action in a narrow sense.

Eko added that important questions that the Constitutional Court must review in case of restriction of human rights are, among others, whether the state’s intervention is based on clear and accessible law, whether there is a legitimate reason to intervene, whether the intervention is sufficient and in line with the objective, whether the intervention is proportional to the objective, and whether it is required in a democratic society.

The key question is whether there is a fair balance between the petitioner’s interests and the society’s interests in general. The principle of balance will also apply when certain rights or certain clauses in the Constitution is violated or burdened. The operation is how to compare between violation of rights and the size of the government’s interest.

Criticism Against Public Officials

Eko explained that in human rights perspective, two things are prohibited: hate speech and war propaganda. Meanwhile, criticism, he said, is clearly mentioned in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), that it is part of the right to freedom of expression.

“How to distinguish it? As long as what is criticized is the policies, including conduct as officials, it is the consequence of being a public official. However, when it concerns the person not as a public official and when it has nothing to do with public officials, we qualify that as an attack to the person,” Eko explained.

He added that fairly modern countries avoid criminal sanctions for cases against individuals. Civil mechanism usually applies there. He believes it is time Indonesia avoid criminalizing such cases.

“Why should the state bother? The state would have to spend a lot of money in a judicial process to defend personal rights, which are supposed to be in the private space, which can be brought to a civil court in the context to prove damage due to the attack,” Eko said.

He explained that one of the instruments to review rights and interests is empirical data, which can explain the empiric reliability of the damage incurred. The reliability of empirical data can be seen on the use of the EIT Law, especially Article 310 paragraph (1) of the Criminal Law, Article 27 paragraph (3) of the EIT Law, and Article 45 paragraph (3) that is important to be made a legal basis. He argued that the Constitutional Court not only review norms, but also real or empirical cases in relation to certain norms.

“I agree with Yance and the Excellencies that the Constitutional Court is a court of norms, but I also believe that it must review real or empirical cases in the context of reviewing norms,” Eko said.

Before concluding the hearing, Chief Justice Suhartoyo announced that the litigating parties’ summaries should be submitted by Monday, February 12, 2024 at 10:00 WIB.

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

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

Threats to Freedom of Expression against Academics and Activists

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

These expert testimonies by Yance Arizona and Eko Riyadi were delivered at a hearing for case No. 78/PUU-XXI/2023 on the judicial review 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            : Muhammad 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.

Wednesday, January 31, 2024 | 12:58 WIB 70