Is Calling for a Demonstration a Crime Due to Incitement?

Asis

Contributor

13 Apr 2026 · 10:14 13 April 2026 10:14 WIB 6 minutes reading time: 6 minutes 2 read

Does the criminalization of calling for a demonstration violate freedom of expression? A legal analysis of incitement and the constitutional rights of citizens.

Menimbang batasan kebebasan berpendapat di tengah potensi jerat pidana penghasutan terkait aksi demonstrasi. (Source: AI Gemini, Redaksi Literasi Hukum Indonesia)

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Legal Literacy - In a country that adheres to a democratic system, freedom of opinion is the oxygen that enlivens the critical thinking of its society. Without room to voice opinions, a country will fall into the abyss of authoritarianism where power operates without control and supervision.

One of the most tangible forms of manifestation of this freedom of expression is demonstration or protest. However, recently, the democratic space in Indonesia seems to be tested by a rather worrying legal phenomenon. A trend has emerged where individuals who initiate or invite the public to take to the streets are instead ensnared by criminal law, primarily by using articles on incitement.

This phenomenon raises a fundamental question that is very essential: is it appropriate and legally reasonable if an invitation to take actions guaranteed by the constitution is considered a crime?

To answer this question, we must return to the highest foundation of law in this Republic, namely the 1945 Constitution. Explicitly, Article 28E paragraph (3) states that "Everyone has the right to freedom of association, assembly, and expression of opinion." This article is not just a series of words without meaning, but a constitutional guarantee that binds the state to protect its citizens when they want to express their aspirations, both orally and in writing, including through the medium of demonstration.

Therefore, in principle, demonstration is a legitimate and legal right. The most basic academic and legal logic teaches that if an act (in this case, demonstrating) is a legal act and guaranteed by the state, then inviting others to commit that legal act cannot possibly be categorized as a criminal act.

This is the main highlight in the case that befell Delpedro Marhaen and his colleagues some time ago. They were charged with inciting people to demonstrate, which ultimately led to destruction. There is a fatal flaw in the indictment prepared by the prosecutor in this case.

Literally and juridically, the offense of "incitement" (usually referring to Article 246 of the New Criminal Code) requires an invitation to commit a crime or violation of the law. Equating an invitation to demonstrate with an invitation to riot is a leap of logic that contradicts the rule of law. The acquittal that was ultimately handed down to Delpedro is irrefutable proof that the indictment was fragile, flawed, and did not have a strong constitutional basis from the start. The court indirectly validated that exercising constitutional rights cannot and should not be criminalized.