Enforcing Article on the Defamation of the President, Police sets their face against Constitutional Court’s Decision

The Police in recent days made arrests and criminal charges against several people who were alleged to have defamed President Joko Widodo. Enforcing the Law on Electronic Information and Transaction (EIT Law) and Penal Code as a legal basis, the Police is blatantly saying that the perpetrators had committed a criminal act of defamation against the President, an criminal offense that was overruled by our Constitutional Court in 2007. Moreover, the ICJR considered all of these cases are leading to limiting the freedom of opinion and expression disguised in defamation of the President.

Related to these cases, the Constitutional Court through Decision Number 013-022/PUU-IV/2006 has revoked articles in the Penal Code that can target people being charged for Defaming the President such as Article 134, Article 136bis, and Article 137 paragraph (1) of the Indonesian Penal Code. The Constitutional Court emphasized that criminalizing people for defaming President was no longer relevant to be applied in a democratic society, a sovereign state that upheld human rights. The Constitutional Court also stressed that there should be no longer any similar arrangement with the offense of defaming the President that has been decided by the Court in contravention to the Constitution and no longer has binding legal force. Thus, any criminal provisions regarding defamation to the authorities that are seen as institutional cannot be used to protect the position of the President as an official and the government.

Besides based on the Constitutional Court Decision, other articles are also excessively used by the authorities to criminalize people who were expressing opinions legally but deemed defaming to the authorities, even though the articles are not applicable. Namely Article 27 paragraph (3) of the EIT Law concerning defamation, Article 156 of the Penal Code and Article 28 paragraph (2) of the EIT Law concerning hate speech, and Article 207 of the Penal Code concerning defamation to public authority.
It is seen that the Article 28 paragraph (2) of the EIT Law is not applicable for the above cases because the Hate Speech referred to in this article can only be intended for expressions that contain provocation or incitement to hatred toward ethnic, religious, racial, and intergroup relations carried out with a view to inciting the public to hate or carry out anarchic acts against the groups. Article 28 paragraph (2) of the EIT Law can not be used at all for the defamation of individuals or authorities. The action taken by the Police by using Article 28 paragraph (2) of the EIT Law reflects arbitrariness.

For Article 27 paragraph (3) of the EIT Law, again it needs to be reminded that based on Law No. 19/2016 the revision of the EIT Law provides that Article 27 paragraph (3) is a form of complaint based offense. Article 207 of the Penal Code, pursuant to the Constitutional Court’s decision Number 013-022/PUU-IV/2006 is also ruled as an absolute complaint based offense which requires that there must be a complaint beforehand by the alleged victim. Even so, Article 207 of the Penal Code or Article 27 paragraph (3) of the EIT Law cannot be used as a tool to protect President Joko Widodo in his position as President of the Republic of Indonesia.

Previously, the Chief of Police through Telegram Letter Number ST/1098/IV/HUK.7.1/2020, Telegram Letter Number ST/1099/IV/HUK.7.1/2020, and Telegram Letter Number ST/1099/IV/HUK.7.1/2020 also has provided instructions for investigators to begin anticipating cases of hate speech and hoaxes, as well as defamation cases to the authorities/President/Government that occurred during the Covid-19 pandemic situation. Regarding this policy, the ICJR strongly criticized the repressive measures put forward by the National Police in handling such cases. The State Apparatus can also be considered against the Constitution when exerting law enforcement excessively without proper legal arguments against people who express their opinions and thoughts legitimately because it constitutes a form of violence against the right to freedom of expression. Article 28 of the 1945 Constitution clearly guarantees the right of citizens to freely express their thoughts orally and in writing.

The ICJR called for the Police to immediately stop all legal proceedings, especially for anyone who is using his right to express his opinions and thoughts as guaranteed by the Constitution. Apart from wrongly enforcing the articles of the EIT Law and the Penal Code, the actions of the authorities to silence freedom of expression by way of repressive actions will only further exacerbate the climate of fear in the community. More concerning, the Police openly oppose the Constitutional Court’s Decision!

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