Last July, Sudjana and Lubis proposed a judicial review on the articles on insult of the President to the Constitutional Court. Those are articles 134, 136, and 137. The two chose to focus on those articles because both had been charged with these offenses. They considered that the articles are not in the spirit of democracy. “Originally, those Dutch colonial-legacy articles were meant to protect the Queen’s dignity,” said Sudjana.
Most of the Constitutional Court judges agreed with Sudjana. Their 76-page finding pronounced those articles irrelevant to Indonesia as a lawful democratic nation. The judges also cited University of Indonesia law professor, Mardjono Reksodipuro, who stated that the President did not need explicit articles to guard his dignity. According to Reksodipuro, whoever feels offended can use Article 310 of the Criminal Code to defend his or her decorum. “In a republic, the nation’s requirements are not linked with the president’s personal needs, such as in the case of a monarchy,” said Reksodipuro.
The Court also presumed that those articles created an ambiguity in the law because they may restrict demonstration activities, limit the free expression of opinions and criticisms as well as freedom of speech.
Since the articles have been removed, the police officers cannot arrest anyone for offending the President. It has changed to complaint offence which is regulated in article 310. The penalty in this article is lighter than those in articles 134, 136 bis, and 137. The maximum penalty for insulting the President was six years in jail, while for chapter 310 it is only one year and four months.
A Constitutional Court judge who wished to remain anonymous mentioned that the argument whether the articles should stay or not has been circulating since the case started last September. “Till the last moment, when the verdict was read, those who wanted to keep the articles didn’t budge,” he said. The argument was tough. Only five out of nine judges agreed to dismiss the chapters. Those who dissented are I Dewa Gde Palguna, Soedarsono, H.A.S Natabaya, and Achmad Roestandi.
Palace spokesperson, Andi Mallarangeng, stated President Susilo Bambang Yudhoyono respected the verdict. “We accept the Constitutional Court’s decision,” said Mallarangeng. At the moment, his division is currently reviewing the channels still available to legal institutions if such a case occurs. According to Mallarangeng, the eradication of those articles should not mean that anybody may criticize or humiliate the President. “It must be limited by a code of ethics and the public can judge the action,” he said.
The government must now clarify the Constitutional Court verdict. “We will no longer use those articles,” said Justice & Human Rights Department Coordination Director, Wicipto. However, he added, it does not apply for current ongoing cases. According to Wicipto, the government is also correcting similar articles in the new Criminal Code draft.
According to Tempo’s record, there are three other insult of the President cases still in progress. They are: Eggy Sudjana’s case, Pandapotan Lubis’s case, and the case involving the Rakyat Merdeka newspaper executive editor, Supratman. Sudjana was charged for insulting the President with his statement which accused the President to have received a luxury Jaguar car from an entrepreneur.
Lubis was charged for putting up humiliating pictures and stickers of the President and Vice President at the Hotel Indonesia roundabout on May 16, 2006. Supratman was charged for printing discrediting reports on President Megawati in the paper’s January-February 2003 editions. Sudjana’s and Lubis’s cases are still in progress at the Central Jakarta District Court, whereas Supratman’s case is being tried at the Appellate State Court after the South Jakarta District Court sentenced him to six months in jail.
According to Sudjana’s lawyer, Firman Wijaya, the judges who are handling those presidential insult cases, should consider the Constitutional Court’s verdict. “They have to void the prosecutor’s charges because the articles are no longer in use,” said Wijaya. On the other hand, Supreme Court spokesperson, Djoko Sarwoko, stated that his department has no comment on the Constitutional Court’s verdict. “We are still studying the verdict,” said Sarwoko.
Abdul Manan, Sandy Indra Pratama
AFTER a long period and a string of victims, the articles on presidential insult were eradicated from the Criminal Code. Those articles are as follows:
An intentional humiliation of the President and Vice President will be sentenced to jail for a maximum of six years or fined Rp4,500.
Article 136 bis
An intentional verbal humiliation which is mentioned in Article 134, including the actions mentioned in Article 315 if the humiliation is not conducted in front of the targeted party, either in public or not in public but in the presence of more than four people or another person who is at the location inadvertently and therefore feels offended.
1. Whoever broadcasts, displays, or erects either writing or images which humiliate the President or Vice President with the intention of having others see them, will be sentenced to jail for a maximum of one year and four months or fined a maximum of Rp4,500.
2. If the guilty party conducts his/her misbehavior when he/she still occupies a position and the crime is conducted less than two years after his/her first punishment for the same crime, he/she can be dismissed from his/her position.
Nanang and Muzakkir (People’s Youth Movement activists)
Charged with stepping on photographs of President Megawati and Vice President Hamzah Haz during a demonstration in front of the State Palace on June 14, 2002.
The Central Jakarta District Court sentenced them to one year in jail.
Iqbal Siregar (Muslim Youth Movement activist)
Charged for insulting President Megawati Sukarnoputri on January 15, 2003.
The Central Jakarta District Court sentenced him to five months in jail on June 16, 2003.
Bay Harkat Firdaus aka Jonday (student of Syarif Hidayatullah Islamic University, Jakarta)
Charged with burning images of President Susilo Bambang Yudhoyono and Vice President Jusuf Kalla during a demonstration against the fuel prices hike on December 20, 2004.
On May 26, 2005, the South Jakarta District Court sentenced him to five months and two days in jail.
I Wayan Suardana (student activist from Udayana University, Denpasar)
Charged with insulting the President and Vice President during a demonstration against the fuel prices hike on December 2004.
The Denpasar District Court sentenced him to six months in jail on June 10, 2005.
Fahrul Rohman aka Paunk (student activist from Syarif Hidayatullah Islamic University, Jakarta)
Charged with insulting the President during a demonstration on June 16, 2006.
The South Jakarta District Court sentenced him to three months and 23 days in jail on October 30, 2006.
Tempo Magazine, No. 15/VII/Dec 12 – 18, 2006