Jakarta, Legal Literacy - Constitutional Court Abolishes Article on Spreading False News that incites unrest in Law Number 1 of 1946 concerning Criminal Law Regulations. The reason for this annulment is that the article is considered ambiguous and potentially misused.
This article has the potential to ensnare people who want to provide input or criticism to the authorities. This can endanger freedom of expression because the assessment of criticism and input can be subjective and potentially misused.
Vague Definition of "Commotion" Threatens Freedom of Expression
Constitutional Justice Enny Nurbaningsih in the Constitutional Court's decision on March 21, 2024, highlighted the danger of articles 14 and 15 of Law 1/1946 which define "commotion" vaguely. This vagueness has the potential to ensnare individuals or communities who criticize government policies, even though the criticism is based on strong facts, evidence, and arguments.
Without a clear definition, criticism of the government can be misinterpreted as "commotion" and result in the silencing of critical voices and the restriction of freedom of expression. This is contrary to UUD 1945 which guarantees the public's right to oversee and criticize government policies.
This Constitutional Court decision is an important step in protecting the constitutional right of the public to express opinions and criticize the government. In the future, it is necessary to revise Law 1/1946 to define "commotion" more clearly and prevent the misuse of this article to silence critical voices.
The Element of "Commotion" in Article 14 of Law 1/1946 is Considered Obsolete and Potentially Silences Criticism
Constitutional Justice Enny Nurbaningsih, in her considerations at the Constitutional Court hearing on March 21, 2024, stated that the element of "disturbance or unrest" in Article 14 of Law 1/1946 is no longer relevant to the developments of the times and information technology.
Enny explained that the public currently has broad and easy access to information through various media, especially social media. This makes opinions and criticisms of government policies in the public sphere part of the dynamics of democracy and the realization of public participation.
Therefore, criticism of the government, even if its truth is still in doubt, cannot be directly considered as "unrest" that can be criminalized. Public discourse and debates arising from such criticism should be seen as part of a healthy democratic process.
Enny emphasized that Article 14 of Law 1/1946 has the potential to be misused to silence criticism and opinions that differ from the government. This is contrary to the constitutional right of citizens to participate in democracy.
The Constitutional Court Partially Granted the Lawsuit by Haris Azhar and Fatia Regarding the Elastic Clause
The Constitutional Court (MK) partially granted the lawsuit filed by Haris Azhar, Fatia Maulidiyanti, YLBHI, and AJI regarding the elastic articles that are often used to ensnare activists and journalists. These articles are Article 14 and 15 of Law 1/1946, Article 310 Paragraph (1) of the Criminal Code, and Article 27 Paragraph (3) and Article 45 Paragraph (3) of the ITE Law.
Haris Azhar and Fatia had previously been charged under these articles based on a report by Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan. However, the panel of the East Jakarta District Court acquitted both of all charges.
In a hearing chaired by Chief Justice of the Constitutional Court Suhartoyo, the Constitutional Court partially granted their request, namely those related to Criminal Law Regulations and the Criminal Code. Meanwhile, the judicial review of the ITE Law was not accepted because it lost its object of dispute, considering that the law had been revised and the new regulation had been stipulated on January 2, 2024.
This Constitutional Court decision is a step forward in protecting human rights and freedom of expression in Indonesia. The elastic articles that are often used to ensnare activists and journalists have long been criticized by various parties for being considered a threat to democracy.
The Vagueness of Articles 14 and 15 of Law 1/1946 Potentially Leads to Misuse
Constitutional Justice Arsul Sani in his considerations at the Constitutional Court hearing on March 21, 2024, highlighted the ambiguity in the norms of Article 14 and 15 of Law 1/1946. The vagueness of the definition of "news or false notification", "disturbance or unrest", and "uncertain or excessive news" has the potential to be misused to ensnare individuals who express criticism of the government.
Arsul explained that the difficulty in finding measures and parameters of "truth" regarding information can open opportunities for subjective interpretation by law enforcement officials. This is feared to become a tool to silence critical voices and restrict the freedom of expression of the public.
The vagueness of the norms in the article also has the potential to create doubt and fear for the public to express their opinions. This can hinder public participation in the process of democracy and national development.
Therefore, the Constitutional Court needs to conduct contextual and evolutionary interpretations of these norms to ensure they do not contradict the constitution and the progress of the times.
The Threat of Articles 14 and 15 of Law 1/1946 to the Right to Creativity and Democracy
Constitutional Justice Arsul Sani, in his considerations during the Constitutional Court hearing on March 21, 2024, asserted that Articles 14 and 15 of Law 1/1946 potentially limit the rights of citizens to be creative in thinking and discovering the truth. The ambiguity of the definition and the absolute nature of these articles could hinder public participation in democracy.
Arsul emphasized that democracy requires opinions and information from citizens to produce sound decisions. The state should not silence the voice of the people under the guise of upholding the truth.
According to Arsul, the state must provide space for its citizens to express themselves freely. This is in line with the principles of democracy that uphold human rights.
The Constitutional Court also assessed that Articles 14 and 15 of Law 1/1946 are rubber articles that lack clear benchmarks. In this digital age, people can easily access information without knowing its truth. This makes these articles increasingly irrelevant and potentially misused.
The Ambiguity of the Element of "Commotion" in Article 14 of Law 1/1946 Potentially Leads to Misuse
In its considerations, the Constitutional Court (MK) assessed that the element of "onar" or "keonaran" (turmoil or commotion) in Article 14 of Law 1/1946 contains unclear measures and parameters that define the limits of danger. The use of the word "keonaran" (commotion) has the potential to create multiple interpretations because consternation, riots, and disturbances have different gradations, as do the consequences they cause.
This ambiguity is feared to open opportunities for subjective interpretation by law enforcement officials, thereby potentially being misused to ensnare individuals who express criticism of the government. This could silence critical voices and limit the freedom of expression of the public.
In addition to removing the provisions of Articles 14 and 15 of Law 1/1946, the Constitutional Court also amended the provisions of Article 310 of Law 1/2023 concerning the Criminal Code by adding the phrase "orally".
This change is intended to:
- Clarify the definition of defamation.
- Limit the scope of the article to prevent it from being misused to ensnare individuals who express criticism orally.
This Constitutional Court decision is a step forward in:
- Protecting human rights and freedom of expression in Indonesia.
- Preventing the misuse of rubber articles to silence critical voices.
- Realizing a healthy and participatory democracy.
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