The government and the House of Representatives (DPR) have completed the first discussion of the Draft Criminal Code (RKUHP). Unfortunately, a number of civil society organizations that are members of the Criminal Code Reform Alliance consider that there are still several articles in the Criminal Code that have the potential to curb and violate the rights and freedoms of the people to express and convey opinions.
In the public discussion "Looking at Potential Threats to Freedom of Expression in the Criminal Code Articles", the Institute for Criminal Justice Reform (ICJR), one of the members of the Criminal Code Reform Alliance which is also a partner of the Tifa Foundation, revealed that there are at least five things in the Criminal Code that threaten freedom of expression:
- There are still regulations regarding crimes against state ideology, namely articles 219, 220 and 221.
- The provisions on the criminal offense of insulting the government regulated in the Criminal Code Book II Chapter V entitled Criminal Offenses Against Public Order articles 284 and 285 have not been abolished.
- Articles 265 and 266 in the RKUHP Book II Chapter II on Criminal Offenses against the Dignity of the President and Vice President have not been revoked.
- There are regulations on criminal offenses against the judicial process or contempt of court.
- The last issue that is projected to curb citizens' freedom of speech and expression is to increase criminal penalties for violators of articles related to freedom of expression.
Why do the above provisions have the potential to threaten the public's right to express their opinions and expressions? Read the explanation from ICJR and Alliance for Criminal Code Reform through the following press release.
ICJR and Alliance for Criminal Code Reform Release
"Potential PRestraint Freedom of Expression After the Draft Criminal Code Discussion"
Although some provisions were heavily debated, the House of Representatives and the Government did not explicitly remove the problematic articles, demonstrating the state's desire to curb human rights.
Currently, the Government and the House of Representatives have completed all the first discussions of the Draft Criminal Code, this process then only leaves some minor discussions related to the articles of the Draft Criminal Code and the technical reformulation of legal norms, basically there are several articles that have been agreed upon and deliberately postponed because they cause debate. In several articles that have been agreed and or postponed, there are several articles that are then projected to curb freedom of expression.
There are at least several crimes as mentioned above that have the potential to be approved in the RKUHP. First, crimes against state ideology. The regulation on crimes against ideology in the Draft Criminal Code is regulated in Chapter I on Crimes Against State Security, namely on the Spread of Communism/Marxism-Leninism (Article 219 and Article 220) and the Elimination and Replacement of Pancasila Ideology (Article 221).
The main problem is that the formulation of the articles on ideological crimes still causes many interpretations (multi-purpose acts), vague and unclear, which can result in human rights violations. Specifically related to the type of prohibited acts, is it the act of spreading the teachings of communism / Marxism-Leninism or acts that replace or change Pancasila? The article essentially states that it is prohibited to develop the teachings of communism/Marxism-Leninism aimed at changing or replacing Pancasila as the basis of the State.
As a result, the formulation of the article is very broad, the phrases of the elements of the criminal offense such as "spreading or developing" then "the teachings of Communism/Marxism-Leninism" and "in public orally or in writing including spreading or developing through any media" have the potential to block freedom of expression and potentially exacerbate the situation of incidents of dissolution of discussions, gatherings, and bans on the publication of books and others that are unilaterally claimed as the teachings of Marxism will continue to occur in the future.
Second, the regulation on the crime of defamation against the government in the Draft Criminal Code is located in Book II Chapter V under the title of Criminal Offenses Against Public Order Article 284 and Article 285 of the Draft Criminal Code. Articles on spreading hatred and expressing hostility towards the authorities that have been eliminated by the Constitutional Court are also re-inserted in Articles 284-285 of the Draft Criminal Code. Therefore, in the future it is clear that the trend of strengthening the articles of State protection will strengthen again. The articles on spreading hatred and hostile statements against the authorities were agreed by the Government and the DPR to be included in the Criminal Code, although they carry the logic of changing from formal offense to material offense, the use of this article will certainly be very subjectively used by the state to silence criticism from the public.
Third, the Criminal Offense of Insulting the Dignity of the President and Vice President in the Draft Criminal Code is in Book II Chapter II Criminal Offenses Against the Dignity of the President and Vice President, in the Second Part. Articles on Insulting the President and Vice President are contained in Article 265 and Article 266 of the Draft Criminal Code and if observed, the articles in the Draft Criminal Code are not much different from the formulation of articles on criminal offenses against the dignity of the president in Chapter II of the Criminal Code, namely Articles 134, 136 Bis 137 of the Criminal Code.
During the discussion, this article was indeed tabled by the DPR, but the Government team persisted with the argument that it was necessary to maintain the dignity of the president and vice president. This article is referred to as the lesse majeste article which intends to make the leader of the country inviolable or cannot be criticized. By Constitutional Court Decision No. 013-022/PUU-IV/2006, the material of this provision was revoked, regulating it again is tantamount to defying the constitution.
Fourth, the Government and the DPR have entered into the discussion of Chapter VI on Criminal Offenses Against the Judicial Process, or commonly referred to as Contemp of Court. At the beginning of the discussion, Prof. Muladi, representing the government, mentioned that the concept in CHAPTER VI is a broader form of regulation than Contemp of Court (CoC), because it also contains provisions related to ignoring court orders, insulting judges and judicial integrity, Trial by Press, and disrespectful treatment in court. The government said that these provisions are designed to protect the judicial process and are futuristic in nature.
The condition of this particular discussion of the CoC article could be very dangerous because the articles in the CoC have the potential to violate human rights. For example, the prohibition to publish anything that has the effect of influencing the impartiality of judges in court proceedings. There is no clear measure and indicator of how judges can be influenced by the publication in question, even so there is already a press council institution that can adjudicate press issues so there is no need for criminal law. Although in several articles there were delays in discussion, once again, both the DPR and the Government did not explicitly remove provisions that were considered problematic.
Fifth, there are several fundamental problems related to the offense of defamation in the Draft Penal Code, namely the increase in the punishment (which will be explained below), and the absence of sufficient justification. The Draft Criminal Code does not seem to see the use of the doctrine of "Self-Defense" in defamation cases. This is so that freedom of expression related to criticism is not confused with insult. So far, expression that is criticized is often reported to law enforcement officials as insults.
Although the discussion has been postponed, it seems that the House of Representatives and the Government have agreed to increase the criminal penalties of the insult articles so far. The Alliance encourages at least the use of fines as a criminal penalty in the insult articles. The criminal offense of defamation will have a criminal penalty of 5 years, which means that there will be repressive measures in the form of detention on the perpetrators of insults, in practice so far, including what happened in the ITE Law, this article will be used as a very effective tool to silence criticism and curb freedom of expression.
The National Alliance for Criminal Code Reform strongly criticizes efforts to include criminal articles that have the potential to violate human rights because of their vague/obscure formulation, and are rubber and flexible so that in practice they have great potential to be misused. In practice, these articles have led to many repressive actions against citizens.
The National Alliance for Criminal Code Reform requests that the DPR and the Government not only look at the issue of unclear elements in the formulation of articles as a matter of explanation, but must ensure that the formulation has legal certainty. Moreover, the National Alliance for Criminal Code Reform requests that the Government, especially the Parliament, reconsider the provisions that have the potential to violate human rights.
Jakarta, March 1, 2017
Alliance for Criminal Code Reform
Supriyadi Widodo Eddyono
ICJR Executive Director
TIFA Foundation and partners always work to encourage and support the fulfillment of people's right to free expression and expression. The above press release was sourced from a third party and its contents are beyond the responsibility of TIFA Foundation.