Court Grants Haris Azhar-Fatiah’s Petition, Abolishes Prohibition Against Spreading Hoaxes
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Haris Azhar at the ruling hearing for case No. 78/PUU-XXI/2023 on the judicial review of the Criminal Code and the EIT Law, Thursday (3/21/2024). Photo by MKRI/Teguh.


JAKARTA (MKRI) — The provision on prohibition against disseminating false news or notice thus creating disturbance, as stipulated in Articles 14 and 15 of the Criminal Code (KUHP), is in violation of the 1945 Constitution. This statement is part of Decision No. 78/PUU-XXI/2023 on the material judicial review petition of Law No. 1 of 1946 on the Criminal Code (KUHP), filed by Haris Azhar and Fatiah Maulidiyanti. The ruling hearing took place on Thursday, March 21, 2024 in the plenary courtroom.

“[The Court] rejects the Petitioners’ provisional petition in its entirety; relating to the subject matter, grants the Petitioners’ petition in part; declares Articles 14 and 15 of Law No. 1 of 1946 on the Criminal Code in violation of the 1945 Constitution of the Republic of Indonesia and not legally binding,” said Chief Justice Suhartoyo reading the verdict.

Delivering the Court’s legal considerations, Constitutional Justice Arsul Sani said “false news or misinformation” and “uncertain news or exaggerated news” in Articles 14 and 15 of the Criminal Code could lead the a quo norms to become “pasal karet” or catchall articles, which in turn lead to legal uncertainty. The Great Dictionary of the Indonesian Language (KBBI) defines “pasal karet” as articles in the law whose measure are not clear. Amid current development of information technology, where it is easier for the public to access information technology networks, the public can obtain information easily and quickly, often without knowing whether it is fake or true or excessive.

“So, the news is spread quickly to the wider community, which can result in the imposition of criminal sanctions on the perpetrator based on the provisions of Article 14 and Article 15 of Law No. 1 No. 1946,” Justice Arsul said.

The Court asserts that there is a lack of clarity regarding the parameter of danger. That is, whether the disturbance can also be interpreted as a riot that endangers the state. In the KBBI, the root word of “keonaran” (disturbance) is “onar,” which has several meanings: disturbance, riot, and commotion. Therefore, it is not singular. Thus, its use in Articles 14 and 15 of the Criminal Code could potentially lead to multiple interpretations, because disturbance, riot, and commotion have different levels and carry different consequences. 

“Thus, the creation of uncertainty due to multiple interpretations would [lead to] unclear elements that become parameter or measure whether or not the perpetrator can be charged with a criminal offense,” Justice Arsul added. 

The Court further asserts although the right to freedom of expression guaranteed by the 1945 Constitution actually aims to provide input or criticism to the authorities, the right will be threatened because what can or may happen is a subjective assessment where arbitrariness could occur. Moreover, with the unclear meaning of “disturbance” in Articles 14 and 15 of the Criminal Code, a person or community deemed to be spreading false news is no longer examined based on existing facts, evidence, and arguments, so the community would be unable to freely monitor and criticize government policies by expressing opinions guaranteed by the 1945 Constitution, i.e. with the right to associate, assemble, and express thoughts orally and in writing.

Irrelevant

Delivering the next part of the Court’s legal considerations, Constitutional Justice Enny Nurbaningsih said the Court had considered the element of “disturbance” in Article 14 of the Criminal Code no longer relevant to the times and current information technology. Now, people have wide and easy access to information through various media, especially social media. So, the dynamic that occurs in expressing opinions and criticisms on government policies in the public sphere. This is part of the dynamic of democracy, which is an embodiment of public participation, which cannot necessarily be considered an element that causes disturbance and can be subject to actions by law enforcement officials.

“In other words, in the event that someone who spreads false news or notice to the public through any media, even though its truth is still doubted, then it generates discourse in the public sphere, the discussion should not necessarily be a form of disturbance in the community, which can be subjected to criminal punishment,” Justice Enny explained.

Furthermore, the Court considers the element of “exaggerated news” a repetition of “false notice,” which are essentially the same. This results in overlapping in the regulation of Article 15 of the Criminal Code, which can make the norm ambiguous. Moreover, the elucidation to it does not clearly describe the levels of accuracy in question, thus is contrary to the principles in the formulation of criminal law, where norms must be made in writing (lex scripta), be clear (lex certa), and be firm without any analogies (lex stricta). Thus, the Court’s legal consideration for the phrase “false news or notice” in Article 14 of the Criminal Code mutatis mutandis apply to “uncertain news” or “exaggerated news” in Article 15 of the Criminal Code.

“Based on the aforementioned legal considerations, the Court holds that the formulation of the norms of Article 14 and Article 15 of Law No. 1 of 1946, which are broad and unclear so that they can be interpreted in an unlimited and diverse manner, has caused the a quo articles to conflict with Article 28D paragraph (1) of the 1945 Constitution, thus does not provide recognition, guarantee, protection, and fair legal certainty and equal treatment before the law for every citizen. Thus, the Petitioners’ arguments relating to the unconstitutionality of Article 14 and Article 15 of No. 1 of 1946 are legally grounded,” Justice Enny explained.

Upon observation, the Court is of the opinion that are differences between the material of Article 433 of Law No. 1 of 2023 (the new Criminal Code) and that of Article 310 paragraph (1) of the Criminal Code, in that the former affirms that the act of defamation includes committing the act “verbally,” which is not regulated in Article 310 paragraph (1) of the Criminal Code. Therefore, without intending to assess the constitutionality of Article 433 of Law No. 1 of 2023, which only has binding legal force after three years since its enactment (January 2, 2026), the affirmation of “verbally” in Article 433 of Law No. 1 of 2023 can be adopted for legal certainty in applying Article 310 paragraph (1) of the Criminal Code.

“Thus, the norm of Article 310 paragraph (1) of the Criminal Code can provide legal certainty and has a range of equality that can reduce the potential for differences in treatment or discrimination against the addresat norm of the provisions of the norm of Article 310 paragraph (1) of the Criminal Code, so that in its application it does not cause ambiguity. 

Thus, based on the legal considerations above, the Court concludes that the provisions of the norms of Article 310 paragraph (1) of the Criminal Code must be declared conditionally unconstitutional, as will be stated in the full ruling of the case a quo. However, because the Court's conclusion a quo is not as requested by the Plaintiffs, therefore the argument of the Plaintiffs regarding the unconstitutionality of the norms of Article 310 paragraph (1) of the Criminal Code is legally grounded in part. 

“Based on the aforementioned legal considerations, it has been found that the provisions of the norms of Article 14 and Article 15 of Law No. 1 of 1946 and Article 310 paragraph (1) of the Criminal Code do not provide recognition, guarantee, protection, and fair legal certainty and equal treatment before the law for every citizen as guaranteed in Article 28D paragraph (1) of the 1945 Constitution. Thus, the Petitioners’ arguments relating to the unconstitutionality of the norms of Article 14 and Article 15 of Law No. 1 of 1946 and Article 310 paragraph (1) of the Criminal Code are legally grounded in part. Meanwhile, the Petitioners’ petitum on the judicial review of the norms of Article 27 paragraph (3) and Article 45 paragraph (3) of Law No. 19 of 2016 has lost its object,” Justice Enny stressed.

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

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

In the petition, Haris Azhar and Fatiah Maulidiyanti (Petitioners I and II) argued that their constitutional rights have been impaired due to the articles being petitioned. They believed those articles have criminalized them, whose work is focused on promoting human rights and the eradication of corruption, collusion, and nepotism (KKN). They also argued that the a quo articles were in fact used to criminalize those who critique of 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’s hands down a decision on this case. They also requested that Article 14, Article 15, and Article 310 paragraph (1) of the Criminal Code and Article 27 paragraph (3) in conjunction with Article 45 paragraph (3) of the EIT Law be declared unconstitutional and not legally binding.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fauzan Febriyan
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.


Thursday, March 21, 2024 | 14:41 WIB 110