The Polemic Of Insulting The President And Vice President In The RKUHP, Is Still Being Discussed By The Minister Of Law And Human Rights

Minister of Law and Human Rights (Menkumham) Yasonna Hamonangan Laoly (Photo: kemenkumham.go.id)

JAKARTA - The controversy over the article on insulting the president and vice president came to the fore after the draft law (RUU) of the Criminal Code (KUHP) was circulated in the community.

Because, in addition to a 5-year prison sentence, the article has also been annulled by the Constitutional Court (MK) when it was led by Mahfud MD.

The rejection also colored the return of the article because it has the potential to become a rubber article, which can hinder healthy public discourse and the limited space for freedom of expression.

The insult to the president and vice president is punishable by a maximum of 3.5 years in prison. If the insult is carried out via social media or electronic means, the threat is 4.5 years in prison.

Meanwhile, those who insult state institutions, such as the DPR, can be subject to a maximum imprisonment of 2 years in prison.

However, the issue was denied by the Minister of Law and Human Rights (Menkumham) Yasonna Hamonangan Laoly. He explained that the article on insulting the president in the RKUHP was intended to prevent people from becoming liberal in expressing their opinions in public spaces.

"I think we will become very liberal if we allow (insulting the president, ed)," Yasonna said during a working meeting at Commission III of the DPR, Wednesday, June 9.

He gave an example, it doesn't matter when it is criticized for not being optimal in serving as Menkumham. However, it is different, if what is attacked is his dignity as an individual. For example, they are called illegitimate children, PKI children, and so on.

Therefore, the PDIP politician considered the need for this article. After all, he said, this article is not only intended to protect the dignity of the current president, but also the president in the future.

In fact, said Yasonna, such articles are commonplace in several countries, such as Thailand and Japan.

"We know, our president is often accused personally of all kinds of issues, he is calm. He told me there is no problem with that article. But, do we let the next president be digitized? So there must be a limit- We have to guard the boundaries as a civilized Indonesian society," said Yasonna Laoly.

Article with Complaint Offense

Deputy Minister of Law and Human Rights (Wamenkumham) Eddy Omar Sharief Hiariej explained that the article was a complaint offense. Where, the article on insulting the head of state is different from the article that was revoked by the Constitutional Court.

“In terms of the division of offenses, the article on insults which was revoked by the Constitutional Court is an ordinary offense. Meanwhile, the KHUP Bill is a complaint offense," explained Eddy at the DPR Building, Jakarta, Wednesday, June 9.

Because of the complaint, Eddy emphasized that the president and vice president must make their own reports on the case in question.

"If the offense is a complaint, it is the president or vice president who must report it themselves," he said.

RKUHP Still Socializing

However, Minister of Law and Human Rights Yasonna Laoly, revealed that his party had not submitted a draft Bill on the Criminal Code (RUU KUHP) to the Indonesian House of Representatives to be included in the 2021 priority national legislation program (Prolegnas).

The reason, said Yasonna, is that the Ministry of Law and Human Rights is currently conducting socialization related to the draft law to several parts of Indonesia.

"We remain committed to conducting socialization first," said Yasonna during a working meeting at Commission III of the DPR, Jakarta, Wednesday, June 9.

However, Yasonna stated that the Ministry of Law and Human Rights would continue the draft of the Criminal Code Bill in stages to be evaluated in the periodic Prolegnas.

"We will continue the evaluation of the National Legislation Program in stages, of course we appreciate the support from Commission III on this matter, namely the Draft Criminal Code," he said.

Yasonna claimed that the Ministry of Law and Human Rights has so far disseminated the Criminal Code Bill to 11 regions in Indonesia. The last one was conducted in DKI Jakarta.

In the socialization, according to Yasonna, the community gave a positive response to the Draft Criminal Code.

"(The Criminal Code Bill) received a positive response from the public. That there is a difference of opinion is something that is commonplace, especially recently there is one thing that is rather warm in the media," explained the PDIP politician.

DPR proposal

Member of Commission III of the DPR RI Habiburrokhman proposed that the article on insulting the President and the House of Representatives (DPR) in the Draft Criminal Code (RUU KUHP) be transferred to the Civil Code (KUH Perdata).

"Article 218 of the Criminal Code Bill, I think this should be transferred to the civil domain only. So the settlement is civil so that it does not involve the police and the prosecutor's office who are the executive family," said Habiburrokhman at the DPR Building, Wednesday, June 9.

So far, the Gerindra politician continued, he is still in the realm of criminal accusations that this article is used to fight or kill people who are opposed to power.

"This will continue to appear objective no matter what the judicial process is, because the police and the prosecutor's office are included in the executive family," explained Habiburrokhman.

Therefore, he is still asking the Minister of Law and Human Rights Yasonna Laoly how to follow up on this issue. Moreover, he has claimed to seek public input by visiting 11 cities in Indonesia.

"So, is there any input regarding the technical carry over? What about the carry over? If you follow up on the second level, it's useless traveling around Indonesia. There are 11 cities to receive input," said Habiburrokhman.

In contrast to him, the chairman of the PPP faction in the DPR RI, Arsul Sani, believes that Articles 218 and 219 regarding attacks on the honor or dignity of the President and Vice President in the Draft Criminal Code (RKUHP) do not need to be abolished.

This is because the member of Commission III of the House of Representatives said that according to legal standards, state crimes against state leaders are still subject to sanctions. Even in democracies.

"We also need to do benchmarking on lese majesty on laws related to attacks on power holders, especially heads of state. How about in other countries? Judging from the benchmarking I did, I see that there are so many countries whose democracy like ours has even longer democratic traditions of us also maintain lese majesty," said Arsul.

For example, he continued, Article 115 of the Danish Penal Code carries a criminal penalty of up to 4 years. Then article 101 of the Icelandic Criminal Code, the threat is also 4 years.

"In Belgium it is not in the Criminal Code, but there is a law from 1847 that insults the head of state, where the king is punishable by up to 3 years," he said.

Meanwhile, the only thing that shifted decriminalization from a criminal approach to a civil approach was France in 2013. Meanwhile, Germany, in 2017 only decriminalized insults to foreign countries, but the head of state himself still maintains criminalization between 3 months to 5 years.

"I haven't studied the Netherlands, haven't read the book of laws, but from what I know, they are still being punished. This means that it is natural that in our Criminal Code, based on benchmarking, articles on insults to the president and vice president are maintained," explained Arsul.

Indonesia's challenge, said the deputy chairman of the MPR, is how the Criminal Code does not conflict with the decision of the Constitutional Court. So in the last period in an effort not to crash, three things had to be done. First, the nature of the offense is changed from an ordinary offense to a complaint offense.

"Secondly, what is the exception in the next paragraph which is not an attack in the context of criticism of public policy and self-defense?" he said.

Third, in order to avoid potential arbitrariness of law enforcement, the sentence must be reduced to less than 5 years.

"So that the Police cannot immediately arrest and take them, even then we are still responding to public concerns, as stated by Mr. Habiburrokhman. So there needs to be another explanation for articles 218 and 2019 of the Criminal Code," he explained.

"So in my opinion, this article still needs to be defended but it must be formulated in a good, careful manner, which closes the potential for misuse to a minimum," said Arsul Sani.