Petitioner of case No. 143/PUU-XXII/2024 challenging Law No. 1 of 2023 on the Criminal Code, Tuesday (10/15/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 1 of 2023 on the Criminal Code (KUHP) on Tuesday, October 15, 2024. The case No. 143/PUU-XXII/2024 was filed by Muhammad Amir Rahayaan, Hamka Arsad Refra, Harso Ohoiwer, and Hasanudin Raharusun.

Article 218 paragraphs (1) and (2) of the Criminal Code reads, “(1) Any Person who assault the honor or dignity and prestige of the President and/or Vice President in public shall be sentenced with imprisonment for a maximum of 3 (three) years and 6 (six) months or a maximum criminal fine of category IV; (2) It shall not constitute an assault to the honor or dignity and prestige as referred to in paragraph (1) if the act is carried out in the public interest or self-defense.” Meanwhile, Article 219 reads, “Any Person who broadcasts, displays, or attaches writings or pictures that are visible to the public, plays recordings that can be heard by the public or disseminates by means of information technology in which the content is assaulting on the honor or dignity and prestige of the President and/or Vice-President with the intention that the contents are publicly known or more publicly known, shall be sentenced with imprisonment for a maximum of 4 (four) years and 6 (six) months or a maximum criminal fine of category IV.”

“The Petitioners filed the judicial review petition because these articles explain assault on the honor and dignity of the president or vice president, as does Article 218 paragraph (1). The Petitioners believe these articles uses the lèse-majesté or lese-majesty approach on any acts or offenses that shows disrespect or lack of respect against a monarch or sovereign in a monarchy. [The concept of] defamation against the honor and dignity of the president or vice president is irrelevant with a democratic republic, as in this case [they] are not interpreted as symbols of the state, despite it being in line with Article 36A of the 1945 Constitution,” said Petitioner II Hamka Arsad Refra.

He explained that Article 218 of the Criminal Code cannot apply the principle primus inter pares or “first among equals” as a sign of respect for president or vice president. Primus inter pares  means that aside from the presidential immunity, the president or vice president have the right to receive protection as “first among equals.”

The Petitioners argued that the articles erroneous since “first among equals” means the president’s right to carry out their duties, such as the right to security protection and other special state rights such as the right to give pardon, or commutation as regulated in Article 14 of the 1945 Constitution. Therefore, they requested that the Court declare Article 218 paragraphs (1) and (2) and Article 219 of the Criminal Code unconstitutional.

Justices’ Advice

In response, Constitutional Justice Daniel Yusmic P. Foekh advised that the Petitioners read Constitutional Court Regulation (PMK) No. 2 of 2021 and study the format of petitions that the Court has granted. “Those samples can be compared to the current petition,” he said.

Meanwhile, Constitutional Justice M. Guntur Hamzah advised them to study Constitutional Court Decision No. 7/PUU-XXI/2023, where the Court declared similar petitions inadmissible for being premature.

“Article 218 of Law No. 1 of 2023 has been reviewed and the Court declared that the Criminal Code challenged is not in effect until 2026, so the judicial review petition is premature. I suggest that the four of you discuss more, since this petition can face the same future,” he stressed.

Before adjourning the session, Constitutional Justice Ridwan Mansyur advised the Petitioners to discuss and study past decisions as well as review the petition’s format and elaborations, and to mention the laws better. The justices gave them 14 days to revise the petition, which must be received by the Registrar’s Office by Monday, October 28, 2024.

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.

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