TEMPO.CO, Jakarta - The Criminal Code (KUHP) Bill still contains articles on insulting the government. The government and the House of Representatives (DPR) should remove these 'elastic articles' because they clearly contradict the spirit of the Constitution.
The Constitutional Court removed the haatzaai artikelen, or articles on hatred against the authorities in 2007. But the government still includes them in the proposed KUHP now being deliberated at the DPR. The rule about "expressing hatred for the government or spreading it" was originally included within KUHP Articles 154 and 155. After being revoked by the Constitutional Court, the same provisions appeared in Articles 284 and 285 of the KUHP Bill
In the proposed KUHP, the two rules have been changed from a formal offense into a material offense. The wording has been made more objective. For example, Article 284 concerns, "insulting the legal government in a way that leads to public disturbance." The phrase "leads to public disturbance" is a new way of clarifying and limiting the wording of this offense.
However, the lines are still blurred. The lack of explanation of "that leads to public disturbance" means this article can be freely interpreted. And the "insulting" can also be subject to multiple interpretations.
Democracy took a step backward when this colonial Dutch legacy was retained. The Dutch monarchy adopted it from a 1915 British regulation applied in India when that nation was still a colony. Now, India has revoked the article as it opposes that nation's constitution.
Several other elastic articles have been preserved, such as the rule on offending the dignity of the president or vice-president. This old-fashioned offense—another Dutch regulation—is revived in Articles 262, 263 and 264 of the proposed KUHP. Its inclusion is clearly a mistake. Indonesia is a republic, not a monarchy. The Dutch monarchy passed this law to protect the dignity of the king, queen and governor-general who governed the colony.
The flexible provisions in the haatzaai artikelen have the potential to breach human rights. The problem is that any criticism of the president could lead to prosecution and heavy punishment, namely five years in jail.
In this era of social media, people speak freely without strong arguments or reasons. The public cannot distinguish between criticism, insults or slander. But the people will learn. In any case, this area is already covered by other laws. If the dignity of the president or vice-president is really threatened, they can complain to the authorities just like any other citizen.
One measure of the quality of a democracy is the ability of the people to speak openly about their leaders. If these articles on the spread of hatred are passed into law, they could stop public criticism altogether. Even minor discussions on the performance of the president could be reported as an action that offends his or her dignity. The same would be true of the ‘living art’ often used by students to satirize our leaders. And the press would no longer feel safe because it would be afraid of the consequences of criticizing the government.
The proposed KUHP, which has been under discussion since the New Order regime, and which has been repeatedly modified, still has many flaws. The DPR and the government must immediately remove provisions that endanger our democracy. (*)
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