By: Alula Khairunisa)*
The article prohibiting insulting the president and vice president in the Draft Criminal Code (RKUHP) should not be a polemic in society. because, the article contains a prohibition against insulting, not criticizing and is included in the category of complaint offense.
In the Draft Criminal Code (RKUHP), the definition of criticism is added in the explanation of article 218 paragraph 2 regarding attacks on the honor or dignity of the President and Vice President.
Deputy Minister of Law and Human Rights (Wamenkumham), Edward Omar Sharif Hiariej said the criticism in question was for the public interest which was expressed with the right to expression and democracy.
Article 218 states, (1) Any person who publicly attacks the honor or dignity of the President or Vice President shall be punished with imprisonment for a maximum of 3 (three) years and 6 (six) months or a maximum fine of category IV. (2) It does not constitute an attack on honor or dignity as referred to in paragraph (1) if the act is carried out in the public interest or for self-defense.
Criticism in the public interest is criticism or opinion that is different from the policies of the president or vice president. It must be accompanied by considerations of the good and bad of the policy. Criticism addressed to the government as much as possible is constructive criticism and provides alternative solutions or criticism must be in an objective way.
In addition, criticism directed at the president and vice president is also not demeaning or attacking the dignity, offending character or personal life.
Spokesman for the RKUHP Socialization Team at the Ministry of Law and Human Rights, Albert Aries, said it was very easy to distinguish between criticism and offense. A criminal offense in this case is like a student saying dirty words to the president. As for the new Criminal Code, the offense of insulting the President can only be carried out if there is a complaint from the presidential official.
Aries emphasized that Article 218 of the RKUHP is different from Article 134 of the Criminal Code and carries the spirit of decolonization and the spirit of democratization. He reasoned that Article 218 of the latest RKUHP was regulated as a type of complaint offense. In other words, only the president has the legal standing to complain, sympathizers or any third party can’t report any insults to the president to the police. In addition, the threat of criminal sanctions is under 5 years so that detention cannot be carried out, and the sanctions do not have to be imprisoned, but can be fined.
He added that the protection of the criminal law on the dignity of the president really needs to be done to distinguish the president from ordinary citizens, because in fact with or without this article the president can still complain with the usual insulting article, the difference is that in article 218 of the RKUHP the criminal sanctions are heavier to differentiate his treatment as stipulated in the regulation. other articles.
Aries also responded related to insults to the government or public institutions that are being discussed according to article 240 of the RKUHP. He stated that Article 240 of the RKUHP changed Article 154 of the Criminal Code which was previously an abstract offense into a concrete offense. Thus, the colonial spirit of Article 154 of the Criminal Code changed. Therefore, this proves that the spirit of decolonialization in the RKUHP is very clear.
It should be noted that the characteristic of colonial articles is usually in the form of ‘ordinary offenses’ (everyone can report), while in Article 218 of the RKUHP concerning attacks on the president’s dignity and self-worth against the president or Article 351 of the RKUHP concerning insults to public institutions, the type of offense is a complaint. the complainant as a person who is harmed can immediately make a complaint.
Minister of Law and Human Rights Yasonna Laoly has confirmed that the article on insulting the President and Vice President has absolutely no intention of limiting criticism. Moreover, the existing laws and regulations in Indonesia also open space for such criticism.
Yasonna explicitly said that the article on insulting the President and Vice President in the RKUHP was different from similar articles that had been annulled by the Constitutional Court. He considered that it was too liberal to allow insults to the President and Vice President.
Deputy Chairman of Commission III of the DPR Adies Kadir assessed that the improvements in the RKUHP were in accordance with the current conditions of society. This law will also not harm the community.
The RKUHP is a carry over or operat from the previous DPR period which is included in the 2022 Priority National Legislation Program (Prolegnas). The government is said to be in no hurry to ratify it.
Law is a reflection of the awareness and uniqueness of society and its existence must be understood by all elements in it. Therefore, the RKUHP gives an important place to the concept of restorative justice which is currently starting to become a legal need and awareness of the community.
Without the RKUHP the President can also sue anyone who insults him, but the existence of the RKUHP of course aims to be a differentiator between the President and ordinary people. However the RKUHP does not threaten critics with imprisonment, but of course there are rules that must be understood to criticize the government.
)* The author is a contributor to the Nusantara Reading Room
