Constitutional Justices Asrul Sani (center), Enny Nurbaningsih (left), and M. Guntur Hamzah (right) at a judicial review hearing of the EIT Law and the Criminal Code, Tuesday (9/3/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — Prosecutor of the Prosecution Office of the Republic of Indonesia Jovi Andrea Bachtiar challenges Article 310 paragraph (3) of the Criminal Code (KUHP) and Article 45 paragraph (7) of Law No. 1 of 2024 on the Second Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT) against the 1945 Constitution to the Constitutional Court (MK). The preliminary hearing for case No. 115/PUU-XXII/2024—presided over by Constitutional Justices Arsul Sani, Enny Nurbaningsih, and M. Guntur Hamzah—took place on Tuesday, September 3, 2024 in the plenary courtroom. Legal counsels Buce Abraham Beruat, Welly Anggara, and Adi Guna Prawira Lubis took turns delivering the petition’s subject matters.

The Petitioner was reported to the South Tapanuli precinct for his critic against state administrators on social media, where he had accused them of abuse of power and arbitrary use of state facilities. He was then reported to by and detained at the South Tapanuli precinct. He believes that the state civil apparatus’ (ASN) resistance to criticism is a logical consequence of the ambiguity of the interpretation of the phrase “in the public interest” in Article 310 paragraph (3) of the Criminal Code and the phrase “for public interest” in Article 45 paragraph (7) of the EIT Law.

The Petitioner believes the articles could be used to criminalize people for expressing criticizing state administrators, just as the Petitioner was. He argues that they are in violation of Article 1 paragraph (2), Article 28E paragraph (3), and Article 28F of the 1945 Constitution.

“The Petitioner appeals to the Court to declare the phrase ‘in the public interest’ in Article 310 paragraph (3) of the Criminal Code unconstitutional if not interpreted to include ‘any criticism against the government, criticism against state administrators so that they would not abuse power or act arbitrarily against the community, and criticism so that state administrators would not use state facilities arbitrarily, let alone without any right [to do so].’ So, Article 310 paragraph (3) of the Criminal Code [should] change to ‘shall not constitute slander or libel if the action is clearly taken for self defense or in the public interest, such as criticism against government policies, criticism against state administrators so that  they would not abuse power or act arbitrarily against the community, and criticism so that state administrators would not use state facilities arbitrarily or without right,’” Lubis said virtually.

Justices’ Advice

Constitutional Justice Enny Nurbaningsih advised the Petitioner to affirm his legal standing. “It is important to elaborate the conditions for constitutional impairment. The rights granted by the Constitution have not been clarified in the petition, as this is the entryway to the Petitioner’s legal standing. Whereas in relation to Article 310 paragraph (3) [of the Criminal Code], there are several Court decisions on it, so it’s necessary to study them. There is also Decision No. 50/PUU-VI/2008, which stressed that the EIT Law refers to Article 310 paragraph (3) of the Criminal Code,” she explained.

Meanwhile, Constitutional Justice M. Guntur Hamzah said the Petitioner would need to explain the chronology of his case and that it has led to constitutional impairment. “Relating to the reasons behind the Petitioner’s petition, the phrase ‘public interest’ in the a quo Law needs to be explained. This definition is actually spread out in the Law. The meaning of ‘public interest’ in various legislation should be observed. See whether the definition is included in the norms petitioned or not,” he said.

Before adjourning the hearing, Constitutional Justice Asrul Sani said the Petitioner would have 14 days to revise the petition and should submit it by Wednesday, September 18, 2024 at 15:00 WIB to the Registrar’s Office. The next hearing to convey revisions to the petition will be scheduled and the Petitioner would be notified.

Author            : Sri Pujianti
Editor             : N. Rosi
PR                 : Tiara Agustina
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.

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