On Thursday, March 21, 2024, the Indonesian Constitutional Court (MK), through the Decision No. 78/PUU-XXI/2023, declared Article 14 and Article 15 of Law No. 1/1946 which regulate distribution of “fake news” unconstitutional as the provisions were incompatible with Article 28D of the 1945 Constitution of Indonesia. This judicial review was petitioned by human rights activists, Fatia Maulidiyanty and Haris Azhar, who were represented by Tim Advokasi Untuk Demokrasi (TAUD/Advocacy Team for Democracy), whose members are resilient activists and civil society organizations, including Yayasan Lembaga Bantuan Hukum Indonesia (Indonesian Legal Aid Foundation) and Aliansi Jurnalis Independen (Alliance of Independent Journalists). The petition was impelled by criminalizing-intent judicial process against Fatia and Haris who had published a YouTube video in which they discussed a report about various mining companies and public officials who have allegedly played part in and have benefited from continuous conflicts in Papua. As one of the mentioned public officials in the video, Luhut Binsar Panjaitan felt offended. He filed a police report against them; and the East Jakarta District Court judiciously acquitted both Fatia and Haris at the end.
The MK decision receives positive response from human rights activists, especially those who focus on issues of freedom of expression, since the “fake news” articles had been often abused to silence individual’s legitimate expression. The MK specifically refers to human rights limitation standards explained in various human rights instruments, including Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), General Comment No. 29 of the ICCPR, and the Johannesburg Principles. The MK further explains in its decision that the elements of “false news or information” and “excessive news” in Article 14 and Article 15 have caused ambiguity due to the complexity in measuring a thing as a truth – since subjectivity of people with their diverse background would always play part. Based on these main arguments, the MK views that the articles had not provided legal certainty, a just protection and guarantee, as well as equality before the law. Thus, they had gone against Article 28D (1) of the 1945 Constitution.
LeIP appreciates the MK for having incorporated sufficient human rights principles within its decision, especially the considerations on the ambiguity of the “fake news” articles. Criminal law provisions inherently work by limiting individual’s freedoms which are guaranteed by human rights provisions; hence, referring to standards for legitimate limitation of human rights in formulating and applying criminal law provisions becomes necessary [Piet Hein van Kempen, “Introduction – Criminal Law and Human Rights”, in Criminal Law and Human Rights, The International Library of Essays on Criminal Law, p. 14-15]. One of the criteria for legitimate limitation of human rights is that the limitation is prescribed by law. The Johannesburg Principles, as referenced by the MK, describes that a restriction on expression works only when the law is “accessible, unambiguous, drawn narrowly and with precision, so as to enable individuals to foresee whether a particular action is unlawful” [Johannesburg Principles 1.1 sub a].
To conclude, every national law, including criminal law provisions, which have been formulated ambiguously and without precision cannot be considered as a legitimate limitation of human rights. The said “fake news” articles should therefore be in fact annulled as having been decided by the MK properly. LeIP views this decision needs to be a bare minimum for the MK in examining other cases, so that it will able to produce more quality decisions that are in line with human rights principles.
However, the decision still leaves some homework to do which may impede actual revocation of abusive “fake news” provisions. Indonesia still has Article 263 (1) and (2) and Article 264 of Law No. 1/2013 (the new Criminal Code) which contain similar formulation as the annulled “fake news” articles. Another challenge is law enforcement officers’ non-compliance with the MK decisions – which has happened to the MK’s few other decisions – although Law on the MK have regulated that the nature of the MK decisions is ‘effective immediately’. Consequently, annulled articles would potentially still be enforced by law enforcement officers, both in ongoing cases and future ones. Whereas, criminal cases which have been investigated before the MK decision and currently are still being processed cannot be charged with the annulled articles by MK. This is in accordance with a principle in criminal law in which the most favorable provisions must apply to a defendant in case an amendment of law happened when his/her case is being processed (Article 1 (2) of the current Criminal Code).
Based on the above explanation, LeIP urges:
- The government and the parliament to harmonize Article 263 (1) and (2) as well as Article 264 of Law No. 1/2023 on the Criminal Code, which still contain similar substances as Article 14 and Article 15 of Law No. 1/1946, in accordance with the MK Decision No. 78/PUU-XXI/2023;
- Law enforcement officers to comply with the MK Decision No. 78/PUU-XXI/2023 by not using Article 14 and Article 15 of Law No. 1/1946 in cases happening after the said decision; and
- Law enforcement officers to comply with the MK Decision No. 78/PUU-XXI/2023 by implementing Article 1 (2) of the current Criminal Code on ongoing cases charged with Article 14 and Article 15 of Law No. 1/1946.
Saturday, March 23, 2024
Indonesian Institute for Independent Judiciary (LeIP)
Contact Person:
Muhamad Dwieka Fitrian Indrawan (muhamaddwieka@leip.or.id, 085291360001)
Mentari Ramadhianty (mentari.anjhanie@leip.or.id, 085654169311)
Raynov Tumorang Pamintori (raynov@leip.or.id , 08567875951)