After The Constitutional Court's Decision, Articles Of Disgrace To The President-Vice President And The Government Must Be Abolished

JAKARTA Trisakti University legal expert, Abdul Fickar Hadjar, said that the substance of Articles 218 and 219 of the Criminal Code concerning criminal acts of insult to the president and vice president as well as Article 240 and 241 of the Criminal Code concerning insults to the government or state institutions must be removed as a follow-up to the Constitutional Court's Decision (MK).

"The abolition of these articles is a progesive adaptation to the Constitutional Court's decision which prohibits state institutions, corporations, or professional associations from reporting allegations of defamation against them," he said, Sunday, May 11, 2025.

As is known, the Constitutional Court Decision No. 105 / PUU-XXII / 2024 prohibits government, institutional and corporate institutions from filing allegations of defamation against them.

The decision was issued on a request for judicial review of Article 27A in conjunction with Article 45 Paragraph (4) of Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions (UU ITE).

In its considerations, the Constitutional Court said that personal protection and guarantees of freedom of expression must be given proportionally and do not cause excessive concerns about the space for civil liberties.

Substantially, the Constitutional Court is of the view that the articles questioned by the applicant have similarities in substance with Article 433 paragraph (1) of the Criminal Code.

However, Article 433 paragraph (1) of the Criminal Code expressly states that defamation is only valid if the victim is an individual, not a government institution or a group of people.

"There is an unclear limitation of the phrase 'other person' in Article 27A of Law 1/2024 which is attacked by honor or good name, then the norm of article a quo is vulnerable to misuse," wrote the Constitutional Court in consideration of the verdict.

Article 27A of the ITE Law states that every person deliberately attacks the honor or good name of another person by accusing him of something, with the intention that it is known to the public in the form of electronic information and/or electronic documents carried out through an electronic system, can be sentenced to a maximum imprisonment of two years and/or a maximum fine of Rp. 400 million.

The Constitutional Court stated that Article 27A of the ITE Law is conditionally unconstitutional as long as the phrase other people' is not interpreted except for government institutions, a group of people with specific or certain identities, institutions, corporations, professions or positions. Thus, this article can only be used as a basis for alleged defamation if the victim is an individual.

According to Fickar, the Constitutional Court's decision Number 105/PUU-XXII/2024 is correct, because state officials or anyone representing state institutions should not be able to sue individuals or citizens who criticize government policies.

The agency will never be harmed, including being defamed. Therefore, the public can only be prosecuted legally if they defame officials throughout their actions related to their duties and authorities," he explained.

He gave an example, one of the most controversial cases is the alleged defamation of President Joko Widodo by Rocky Gerung.

In 2024, Rocky was reported to the police for being stupid when commenting on Jokowi who went back and forth to China to promote the capital city of the archipelago (IKN).

"In that case, the Panel of Judges at the South Jakarta District Court found Rocky not guilty because Rocky was not an attack on Jokowi's personal affairs, but against government policies," he added.