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The article on the President’s insults in the RKUHP is Right

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By: Dewi Ayu Lestari

After the spread of articles on 14 controversial issues, the pros and cons of a number of articles in the Draft Law on the Criminal Code (RUU KUHP) are the dynamics of society as well as a form of concern for the birth of domestic legal products. It is certain that the Draft Criminal Code will contain articles on insults to the president and vice president. Deputy Minister of Law and Human Rights (Wamenkumham) Edward OS Hiariej emphasized that the government would not remove the article from the draft RKUHP even if it caused a debate.

One party asked for the abolition of the article in the KHPP Bill for the sake of the principle of equality before the law. They are also worried that in the future the people will not be able to criticize and fear that there will be an insult to the president or vice president of the Republic of Indonesia. Press Release Indonesian Center for Law and Policy Studies or what is often called PSHK belongs to the group that rejects the formulation of the RKUHP, its refusal is based on considering 5 things, namely PSHK considers that “the president is a symbol of the state” and “society personification” which is used by the government to justify the article on insults. the president into the RKUHP is wrong. Because, the matter of state symbols is clearly regulated in Articles 35 and 36B of the 1945 Constitution concerning state symbols, as regulated in Law Number 24 of 2009, namely Garuda Pancasila, flag, language, state symbol and national anthem. The second reason is that inserting the article on insulting the president into the RKUHP is not appropriate because the president is an office, and must be distinguished from the individual who fills the position. As an office, the president does not have the moral qualities to feel humiliated. In that construction, every comment, sentiment, praise and even public scorn to the president is a form of assessment of performance in carrying out its duties and functions. The issue of whether or not the communication method is appropriate in conveying criticism of government functions is in the area of ​​ethics, in which social sanctions apply, so it is not appropriate to be charged with criminal sanctions. Third, The government’s reason that the abolition of the articles on insulting the president and vice president will create an overly liberal society is an argument based on premature hypotheses. Fourth, the change of the article on insulting the president to a complaint offense does not eliminate the risk of criminalization and the last is the fifth rejection containing the policy of formulating the article on insulting the president into the RKUHP which is also not accompanied by an adequate cost-benefit analysis. In fact, each addition of one article will have a significant impact on the portion of the policy budget later. Fourth, the change of the article on insulting the president to a complaint offense does not eliminate the risk of criminalization and the last is the fifth rejection containing the policy of formulating the article on insulting the president into the RKUHP which is also not accompanied by an adequate cost-benefit analysis. In fact, each addition of one article will have a significant impact on the portion of the policy budget later. Fourth, the change of the article on insulting the president to a complaint offense does not eliminate the risk of criminalization and the last is the fifth rejection containing the policy of formulating the article on insulting the president into the RKUHP which is also not accompanied by an adequate cost-benefit analysis. In fact, each addition of one article will have a significant impact on the portion of the policy budget later. 

If we talk about the cons, of course there are also those who are pro to the proposal. However, there are things that we must all agree on that everyone has the same right to get legal protection for insults, even the president. The same thing was expressed by Prof. DR. H. Faisal Santiago, SH, MH, as the Head of the Doctor of Law Study Program at Borobudur University. Prof. Faisal said that based on the 1945 Constitution of the Republic of Indonesia, Chapter III of the Power of the State Government, Article 4 Paragraph (1) stated that the President of the Republic of Indonesia holds the power of government according to the Constitution. Furthermore, Article 10 of the 1945 Constitution of the Republic of Indonesia states that the President holds the highest power over the Army, Navy and Air Force. Article 13 Paragraph (1) states that the President appoints ambassadors and consuls. Furthermore, Article 1 5 states that the President grants titles, honors, and other honors which are regulated by law. These are all symbols of the sovereignty, continuity, and majesty of a head of state who is actually the head of government. Prof. Statement. Faisal was also strengthened by the conclusion of the Constitutional Court which stated that personal honor, good name, individual dignity of citizens and officials on duty were constitutional rights (constitutional right) which must be protected. Insulting the president and vice president in accordance with Article 134 of the Criminal Code carries a maximum penalty of six years in prison, while the maximum penalty for violating Article 310 of the Criminal Code is one year and four months; Article 311 with a maximum sanction of four years; Article 316 with a sanction plus 1/3 of the previous article.

The constitutional elaboration has been carried out, namely acts including insulting with letters, slandering and insulting with the aim of slandering. If judging from the principle of justice, everyone also gets the same rights. Seeing this, the creation of the article that regulates the matter of insulting the dignity of the president and vice president in the Criminal Code Bill is already on the right path considering the principle of authority in social life. The principle of authority is reflected in respect for the president and vice president as heads of state. We recognize that there is a principle of equality in democracy which has become the philosophy of the Indonesian nation. However, in addition to the principle of equality, the public must also understand the principle of authority. Because, in fact the Government can distinguish between criticism and insults.

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