CONSTITUTIONAL COURT RULES INSULTING THE PRESIDENT

UNCLAS JAKARTA 013476 SIPDIS SIPDIS E.O. 12958: N/A TAGS: PHUM PREL PGOV ID SUBJECT: CONSTITUTIONAL COURT RULES INSULTING THE PRESIDENT IS NOT A CRIME REF: JAKARTA 12607 ¶1. (U) Summary: A divided Constitutional Court on December 7 struck down three articles of the Criminal Code which made insulting the President or Vice President a criminal act. The instant case involved an appeal brought by two political activists being tried for insulting President Yudhoyono during a political rally. The five to four ruling was an important step in expanding the right to free political speech and brings Indonesian jurisprudence in line with international standards. It also breathes fresh air into the attempt by Indonesian human rights lawyers to ensure that the planned revision of the Criminal Code will codify the Court's ruling. While the debate will probably endure should the government maintain such provisions in its draft Criminal Code, the multi-year process expected to adopt the broader legislation (reftel) will keep the current decision intact for some time. End Summary ¶2. (U) On December 7, the Constitutional Court struck down Articles 134, 136, and 137 of the Criminal Code, which made insulting the President or Vice President a criminal act. The articles are a colonial legacy originally intended to protect the Dutch royal family from insult. They remained in force after independence and permitted prison sentences of up to six years for violations. Law Used to Silence Opponents -------------- ¶3. (U) Former President Soeharto used the articles to intimidate, silence, and punish opposition figures. Since his departure the articles were used on several occasions. During President Megawati's administration, two newspaper editors were given suspended sentences after being convicted of defaming the president. Earlier this year, Fakhrur Rahman, an activist at the State Islamic University in Jakarta, was sentenced to three months in prison for insulting President Yudhoyono during a protest. ¶4. (U) The current case arose after two activists, Eggi Sudjana and Pandapotan Lubis, were charged for public comments they made about President Yudhoyono earlier this year. During the course of their criminal trial, they filed suit asking for a determination of the constitutionality of the articles under which they were charged. ¶5. (U) A five-member majority of the Constitutional Court, led by Chief Justice Jimly Asshiddiqie, struck down the articles because they violated constitutionally-guaranteed rights to free speech and to receive information. The majority opinion also ruled that the articles were overly vague and that they were implemented in a manner which violates the legal principle that legislation must clearly outline proscribed behavior. The dissent argued that protecting the dignity of the Office of the President and Vice President is a legitimate purpose, but admitted that the implementation of the contested articles had been problematic. Decision Is a Milestone -------------- ¶6. (U) Noted Indonesian human rights lawyer, Todung Mulya Lubis, (no relation to the plaintiffs) told poloff that the Constitutional Court ruling is a milestone and brings Indonesian law in line with international free speech standards. When asked what impact the ruling would have on efforts to revise the Criminal Code, Lubis stated that the work of the team has not been made public, but that the government team should take this decision into account when formulating its proposal. When the proposed revised code is put before committee, Lubis expects friendly legislators to call him as an expert witness, allowing him to argue that insulting the President or Vice President should not be criminalized. Media reports state that the Chair of the government team drafting the Criminal Code revision is on record defending the contested articles. The Chairman of the National Committee for Human Rights, Abdul Hakim Garuda Nusantara, separately confirmed to us that the government team supports criminal penalties for insulting the President or Vice President. While the issue may yet be debated in the context of the new draft code, the current court decision should remain intact for some time, since the new legislation is not expected to be adopted for several years. PASCOE