Thursday, July 19, 2007

Bye-Bye "Hatzaai Artikelen"

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesia Contitutional Law 2007.

After waiting a few tens of years, finally the long struggle of pro-democracy activists in Indonesia to eliminate all forms of rules that do not fit with the culture of democracy, human rights (human rights), and the spirit of the law of the state, reaping encouraging results. This is reflected in the decision of the Constitutional Court (MK) on the test (judicial review) of Article 134, Article 136Bis, and Article 137 of Law Book Criminal Law (Penal Code) against the 1945 Constitution proposed by Eggi Sudjana and Pandapotan Lubis (6 / 12 ).

Tax Court in the verdict 013-022/PUU-IV/2006 stated that Article 134, 136Bis, and 137 of the Penal Code, which governs the crimes dignity (humiliation) of the president and vice president violated the 1945 Constitution and void and have no force legally binding. Although the resulting decision by the Court was not a unanimous vote or unanimous nine Constitutional Justices, because four Justices dissenting opinion to the Constitution, but at least the decision of this Court can be a breath of fresh air and a new milestone for the acceleration of the democratization process in Indonesia is currently running .

As we know, Article 134, 136Bis, 137 of the Penal Code is a lump of stone and block the main enemy of freedom of expression of pro-democracy activists in Indonesia in the voice of conscience and channel the aspirations of criticism and protests to the authorities (read: president) for this. And also these articles are also frequently used by authorities as an instrument and the legal basis to send activists to jail. Among the activists these articles known as the rubber article or haatzai artikelen. Said to be a rubber article due to the application and interpretation can be flexible depending on the tastes mungkret and subjective view of the police, prosecutors, judges and the rulers in power. In addition, when viewed from a historical aspect, the invention of the rubber articles are by the Dutch colonizers to be used as a legal instrument in the action against anyone who insults the Queen of the Netherlands and the Dutch representation.

Reflecting on past experience, historical records show that many of the activists critical of the government's contempt offense victims head of state. During the New Order regime (Order) under the leadership of former President Suharto many activists who become victims. One of those who have sat in the chair condemned as insulting the head of state defendant is Sri Bintang Pamungkas who is an academic. By the time Suharto was still in power in this country, Sri Bintang should be in jail for 10 months after a judge sentenced him guilty of insulting the head of state during demonstrations in Dresden, Germany. Besides Sri Bintang, there are still many other activists who had been the victims of the ferocity of rubber articles call it, activists PIJAR Tri Agus S. and politicians Aberson Marle Sihaloho.

Also in the reform period, despite a decline in the use of rubber articles by the authorities to eradicate the critic. However, it does not mean activists who are victims at all. In the reign of former President BJ Habibie rubber articles are not used, although at that time the people and students demostrasi lasted nearly every day and so massive. At the time of Habibie became president, it was the policy (policy) is taken by him is to release all political prisoners (political prisoners) and political prisoners (prisoners) New Order regime's legacy. The author does not assume the use of a rubber article by the former President Habibie in his administration based on two things, namely, first, the political circumstances at that time did not allow former President Habibie use rubber articles. Second, the short reign held by former President Habibie, as known to the government of former President Habibie is temporary and transitional.

At the time of administration of former President Abdurrahman Wahid (Gus Dur) was recorded Muhammad Nazar, Chairman of the Aceh Referendum Information Center (SIRA) never felt such a rubber article. At the time of former President Megawati held a national leadership again sticking the usage of rubber articles. A number of students and activists were arrested and stand trial on charges of insulting the head of state. A list of names like Kleruk Want Ignas, GMU student of philosophy is captured by police set fire to a replica doll because of former President Megawati. Raihan and six female students in Aceh herded into police headquarters because of their demonstrations a red cross sign in the photograph of President Megawati and Vice President Hamzah Haz. And based on data released by Human Rights Watch (HRW) Asia Division, the government of former President Megawati noted as the most frequent regime ensnare his political enemies with contempt the head of state chapters. During the Indonesian independence, there are at least 46 cases of insulting the head of state, and 39 cases of insult to the girl's Bung Karno.

In the reign of President Yudhoyono, a similar incident over and over again. Penal Code Article rubber back membukam used as a weapon to silence activists who tune to the government. The result, some victims aktivispun back rubber articles of the Penal Code. Within two years the government of President Yudhoyono, there are at least four people charged with such a rubber article, even two of them had been disconnected (in khract van bewuijs). On March 24, 2005, I Wayan Gendo suardana, arson photos convicted president and vice president, was sentenced to six months in prison by Denpasar District Court. The same fate befall Fahrur alias Paung Rohman. State Islamic University Students (UIN) were arrested while demonstrating in front of the National University Campus Pejaten. The reason that made the police to capture the moment Fahrur Rohman, because he was at the time of distributing posters demostrasi President Yudhoyono and Vice President Jusuf Kalla, whose face was given a cross and the words "We Do not Hold". And the action is considered by police as an act of insulting the dignity of the president and his deputy. Consequently, he was sentenced to imprisonment for three months, 23 days since proven guilty of contempt against the president as stated in Article 134 of the Penal Code Junto Article 136Bis. Lubis Pandapotan activists were arrested May 18, 2006 on the grounds carried posters demanding President Yudhoyono and Vice President Jusuf Kalla resigned his position as demonstrated in Bundaran Hotel Indonesia (HI) on May 16, 2006. The latest is that the case against Eggi Sudjana. He was charged with spreading rumors by providing entrepreneurs Jaguar Harry Tanoesudibyo to one of President Yudhoyono's son, secretary of state, and the two presidential spokesman. Eggi any further charged with using insulting articles against the president.

Grounded in the reality of the past dark history that until now were often happens, and when examined in depth, the decision taken by the Court in this case, the deleting the existence of the Articles of rubber / haatzai artikelen contained in the Penal Code, especially articles that regulate offense insult to the head of state can be said is correct and true. This is because, first, in addition to a Dutch colonial heritage and hundreds of years old, the Articles of rubber / haatzai artikelen in the Criminal Code is no longer relevant to the circumstances in which Indonesia is undergoing a transition process towards a constitutional democracy. Second, the articles of rubber / haatzai artikelen in the Penal Code was violated human rights values that do not uphold the freedom of expressing thoughts and opinions, and freedom of information. Third, the articles of rubber / haatzai artikelen in the Criminal Code, creating legal uncertainty (rechtsonzakerheid) and negating one universal principle that is based on a state law (the rule of law) the principle of equality before the law (equality before the law / equality under law ). Fourth, many states currently already deleted the article an insult to the head of state or government with arguments to guarantee freedom of expression freedom of information EAN. Even in the Dutch state, which is the origin of the article where it came from, the provisions of haatzai artikelen been deleted. Fifth, the current offense insult by modern legal thinkers (modern legal thinkers), is no longer considered a problem in the domain of criminal law, but as a problem in the domain of civil law. Because humiliation is a matter between individuals (private), not a public matter and should be sanctions (punishment) is not given in the form of sanctions to imprisonment but to pay money damages.

Now, post-discharge the Constitutional Court's decision to cancel a number of rubber articles of the Criminal Code, at least there's one thing to be done by the government and the House of Representatives (DPR), the government and parliament was expected to conduct a review of the draft Bill (the Bill) the revision of the Penal Code . Because if the reading and listening to the draft, there are still some articles that can be categorized as rubber articles (offense insult to the head of state) such as Article 224, paragraph 225 and 226 (1). Because if it is not immediately done by the government and Parliament, it is not impossible, later after the draft revision of the Criminal Code are adopted and enacted, the event of cancellation by the Constitutional Court will happen again.

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