Criticizing The Government Can Be As Long As It Is Responsible

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JAKARTA The Constitutional Court (MK) is like blowing a breath of fresh air in democratic life in Indonesia, especially regarding freedom of opinion/expression by issuing Decision Number 105/PUU-XXII/2024.

Through this 105 decision, as the constitutional mandate has begun to be heeded, the right to freedom of expression / can be echoed again in the hope that it can become a form of checks and balances from the community to policy makers through their right to freedom of expression without having to be haunted by the threat of criminalization in the form of defamation.

As we all know, Law Number 1 of 2024 Information and Electronic Transactions (ITE) has explicitly regulated the defamation which initially applies in general to all circles, related to the meaning of the phrase 'other people' in the law.

This is what the Constitutional Court then examined through the 105 decision by providing quite clear limits, defamation is only applied to individuals and is not intended for the government, corporations, agencies, professions, and positions.

The release of this decision was motivated by the granting of some of the judicial review lawsuits filed by an environmental activist from the Kawal Indonesia Lestari (KAWALI) coalition, Daniel Frits Maurits Tangkilisan, who assessed the phrase other person' in Article 27A in the ITE Law poses a legal risk as a rubber article and multiple interpretations.

According to Trisakti University legal expert, Abdul Fickar Hadjar, seen from the legal perspective, the Constitutional Court's decision is in line with the principle of lex specialis derogat legis in which general criminal provisions (KUHP) remain the basis for reference in interpreting articles in the ITE Law.

In the Criminal Code, the offense of insult and defamation is a complaint offense and can only be done by individuals who feel they have received treatment and losses for this. This decision also shows the Court's alignment with the principles of proportionality in law enforcement.

"In many previous cases, the use of Article 27A of the ITE Law is often excessive and unbalanced between the interests of maintaining a reputation and the right to express opinions. This creates a chilling effect, in which people are afraid to convey criticism because of the legal threat," he said, Monday, May 19, 2025.

Researcher from the Institute for Criminal Justice Reform (ICJR), Maidina Rahmawati added, from the point of view of human rights, this decision is a progressive step in implementing Article 19 of the International Convention on Civil and Political Rights (ICCPR) which has been ratified by Indonesia. This article guarantees freedom of expression as a fundamental right that can only be limited to a limited and proportional level, emphasizing the importance of protecting freedom of expression.

He stated, in the digital era, people are increasingly actively expressing opinions, especially through social media. On the other hand, public institutions are required to be more transparent and accountable. Unfortunately, continued Maidina, the imbalance in power between individuals and institutions makes people vulnerable to criminalization when criticizing, especially if institutions that are criticized have great economic or political power.

Therefore, the Constitutional Court's decision has a positive impact on real protection for civil society from potential criminalization due to public surveillance activities towards large state or corporate administration. "In addition, this decision can be the first step to encourage democratic culture in resolving social conflicts, not always with legal threats, but through dialogue and clarification," he said.

Must Be Able To Distinguish Criticism And Blasphemy

UGM criminal law expert, Muhammad Fatahillah Akbar said, although the Constitutional Court's decision opened up space to criticize policy makers, the public must be smart and able to distinguish between criticism and blasphemy or insults. He explained that there is a clear difference between giving criticism or just blaspheming.

Criticism is something that is necessary and positive because it is based on research. While blasphemy is something that is intended to attack a person's dignity. Blasphemy has the intention of attacking one party on purpose while criticizing him is an opinion to evaluate negative aspects but provides constructive advice too," he added.

People often forget or go too far. Maybe people feel that they are criticizing, but don't realize that actually the words he spends are blasphemy that leads to attacks on individual dignity," continued Fatahillah.

The public's awareness to use the freedom to criticize those responsible was also reminded by the Minister of State Secretary (Mensesneg) Prasetyo Hadi and Deputy Speaker of the Indonesian House of Representatives, Sufmi Dasco Ahmad. Minister of State Secretary Prasetyo Hadi emphasized that even though the Constitutional Court's decision brought fresh air to freedom of expression, the public must exercise this right responsibly.

"The Constitutional Court's decision which is then considered to be good news of freedom of expression, so in our opinion the most important thing is that we all understand that freedom of opinion has also occurred and is also protected by our Constitution," he said.

Deputy Chairman of the MPR RI Sufmi Dasco Ahmad. (Nailin - VOI)

"It's okay"

"It's okay"

"It's okay"

"It's okay"

Deputy Speaker of the DPR, Sufmi Dasco Ahmad also reminded that even though there are concessions in rules, eastern culture that uphold ethics and manners must still be maintained by the community.

Even so, we still have to maintain behavior in criticizing. There must be collective awareness to stay limited in acting, especially in the digital space. Freedom does not mean being free without responsibility," he said.

Regardless of anything, Indonesia's democratic life in the past year has begun to show its identity, where people such as being thrown away and snatching their freedoms on the pretext of the ITE Law which often ensnares criminally.

Therefore, the Constitutional Court's decision can be a breath of fresh air for every individual in voicing criticism of policies, performance, from the government which is considered irrelevant to existing laws and regulations.