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Test The Material Constitutional Court Number 7/puu-Vii/2009 Year 2009

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 7/PUU-VII/2009 Tahun 2009

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VERDICT

Number 7/PUU-VII/2009

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] Which examined, Prosecute, and severing constitutional cases in

first and last level, dropping a ruling in a case

Testing of the Code of Criminal Law against the Act

The Basic State of the Republic of Indonesia Year 1945, submitted by:

[1.2] Dr. Rizal Ramli, born in Padang, 10 December 1953, religious Islam,

private work, address at Bangka IX Street Number 49, Kelurahan

Pela, Mampang Prapatan District, South Jakarta. Based on the Letter

Special Power dated January 23, 2009, giving power to

1) Sirra Prayuna, S.H., 3) Prof. Dr. O.C. Kaligis, S.H., M.H., 4) Chudry Sitompul,

S.H., M.H., 5) Erman Umar, S.H., 6) Lukman Hakim, S.H., 7) Zen Smith, S.H.,

8) Afrian Bondjol, S.H., LLM., 9) TB. Sukatma, S.H., M.H., 10) Achmad Alwi, S.H.,

11) Ahmad Syaihu, S. Ag, 12) Ace Kurnia, S. Ag, 13) Aulia Hidayat, S.H.,

14) Badrul Munir, S. Ag., 15) Chairil Syah, S.H., 16) Edi Wahyono, S.H., 17) Ersan

Budiman, S.H., 18) Ezar Ibrahim, S.H., 19) Fadlina Nasution, S.H., 20) Feri

Setiawan Samad, S.H., 21) Gunawan Nanung, S.H., 22) Imam Subeno, S.H.,

23) M. Taufik Riyadi, S.H., 24) Panca, S.H., 25) Patra M. Zein, S.H.,

26) Rahmat, S.H., 27) Roland, S.H., S.H., 28) Sigiti Handoyo, S.H., 29) Sony Heru

Prasetyo, S.H., S. Hum., 30) Syamsul Bahri Radjam, S.H., 31) Collision with Abby, S.H.

Everything is an Advocate attached to the Advocacy Team For

Indonesia change (The API Team), which addresses the House of Change, Road

2

The Commander of Polim V Number 52 South Jakarta, both individually and

together act for and on behalf of the Power Deliverer.

Next is referred to as a. Applicant;

[1.3] Reading a request from the applicant;

Hearing the caption from the applicant;

Checking the evidence from the applicant;

hearing and reading the Government's written caption;

Hearing the witness and experts from the applicant;

Hearing expert adverts from the Government;

Read the applicant ' s written conclusion.

2. SITTING LAWSUIT

[2.1] A draw that, the applicant has applied for

dated January 27, 2009 which is accepted and listed in Kepaniteraan

The Constitutional Court (subsequently called the Court of Justice) on

on February 2, 2009, registration Perkara Number 7/PUU-VII/2009,

which had been corrected and received in the Court of Justice on 25

February 2009, suggested the following:

I. Court Authority

That the provisions governing the authority of the Constitutional Court to

conduct a material test of the Act against the Basic Law

The State of the Republic of Indonesia in 1945 (selanjuntya called UUD 1945)

is as follows:

1. Article 24C paragraph (2) of the Constitution of 1945, " The judicial power is done by

a Supreme Court and judicial body located at

underneath it in the general judicial environment, the judicial environment

the religion, the environment military justice, the judicial environment of the enterprise

the state, and by a Constitutional Court ".

2. Article 24C paragraph (1) of the Constitution of 1945, " Constitutional Court of authority

prosecute at first and last rate that its verdict is

final to test the legislation against the Basic Law,

3

severing the jurisdiction of the state institution's authority

provided by the Basic Law, severing the party's disbandment

politics, and severing disputes about the results of the general election. "

3. Article 10 paragraph (1) of the letter a Law No. 24 of 2003 on

The Constitutional Court (selanjuntya called Act MK) states,

" The Constitutional Court of authority is prosecuting at first level and

the last one The verdict is final to test the legislation

against the Basic Law. " Therefore, under the section

the applicant submitted this application to the Court

Constitution.

4. That the object of the request is the Act of the Republic of Indonesia

No. 1 Year 1946 or better known by the Book of Invite-

invite the Criminal Law (KUHP), then under that rule in

on the Constitutional Court authorities examine and prosecute

this request;

II. The Applicant Law (Legal Standing)

1. That under Section 51 of the paragraph (1) of the MK code, " The applicant is a party

which considers the rights and/or its constitutional authority to be harmed

by the law, that is:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the State of Unity

The Republic of Indonesia is set in an invitation;

c. public law enforcement agency or private, and

d. state agencies;

2. That explanation of Article 51 of the paragraph (1) of the Act of MK states that

referred to "constitutional right" is the rights set forth in

the Constitution of the Republic of the Republic of the Year of 1945; "

3. That the applicant as an individual citizen of Indonesia

argues that the enaccation of Article 160 of the Criminal Code on

incitement, contradictory and/or not appropriate to the mandate

the constitution as referred to Article 28, Article 28C paragraph (2),

Article 28E paragraph (2) and paragraph (3), and Article 28G paragraph (1) of the Constitution of 1945;

4. That constitutional rights and authority are owned by the applicant

4

as a person or individual of the citizen, as stated

in the 1945 Constitution includes the common human rights

as well as in particular the right to express opinions and thoughts, both orally

and writing, by still the enactment of Article 160 of the Criminal Code rights

The applicant constitutional has been harmed, as the Police Investigator who

has made the applicant as a suspect on the basis of Article 160

The Penal Code is based on freedom argues in

eject the mind both oral and written. by

The applicant in his position as General Chairman of the Bangkit Committee

Indonesia (KBI);

5. That the Constitutional Court once examined, tried and disconnected

the constitutional case, had dropped the ruling in the case

application for testing of Article 160 of the Criminal Code, filed by Dr. R. Panji

Utomo in case Number 6/PUU-V/2007, in consideration

its law states, " in relation to Article 107, Article 160,

Article 161, Section 207, and Article 208 of the Criminal Code, the Court argued

there is no relevance to the control of the a constitutional loss that

has been suffered by the applicant in the plea of a quo, So that

satisfy the provisions of Article 51 of the paragraph (1) of the MK Act and the terms

The constitutional rights losses as described above. By

therefore, against Section 107 Dr. R. Panji Utomo

in the No. 6/PUU-V/2007 application in the Constitutional Court

stated, " Section 160 charge materials and Section 161 of the Criminal Code are also

discriminatory for giving very much privilege to

protects the interests of government power, and therefore

contrary to the equalitiy principle before the law.

is confirmed here that the provisions in Article 160 of the Criminal Code and the Articles

161 of the Criminal Code restricts human rights by accident reduces,

blocking, restricting, and/or revoking one's human rights or

the group of people, and therefore, are in violation of human rights. "

14. That Article 160 of the Criminal Code is contrary to the principle of lex certa, that is

deeds which are to be prohibited in the criminal law must

be formulated and mentioned by the elements in light, clearly and

unequivocal so clearly intent, purpose as well as the limits of deeds that

wish to be prohibited that may incur legal uncertainty in

criminal law enforcement practices.

VII. The range of Article 160 of the Penal Code may be abused by the Sovereign

1. That Article 160 of the Penal Code may be misused by the ruler because

it is bendable, subjective, and very dependent

the ruler's interpretation. As a result of an interpretation of the

arbitrary interpretation by the ruler and legal apparatus then the deed

it may incur legal uncertainty and can be

in violation of the applicant's rights;

2. That the qualifying delik qualification formulated in Article 160 of the Criminal Code

is a formal delik (Prof. dr. Wiryono Prodjodikoro, S.H. Tindak-follow

Certain Criminal Justice in Indonesia, Refika, page: 51) which only

requires that the element of the action is banned (strafbare

handeling) without Resulting in a result of an act. Consequently

12

The formula of the penal chapter poses a tendency

abuse of power as it can be easily interpreted

according to the ruler's taste. A citizen intended

relayed criticism or opinion against the government, where it is a constitutional right guaranteed by the 1945 Constitution, will

easily qualified by the ruler as instilled in advance. public

to encourage, invite, stir or burn

the spirit of people to counter government power, as a result of

no apparent criteria in the formulation of Article 160 of the Criminal Code

about what it means with inciting;

3. That Article 160 of the Criminal Code is a "rubber section" (haatzai artikelen)

that is still in effect, where the section is not definitively done

what is quantified as the warmongers ' section of either oral

and the writing that criticized the ruler ' s policy in this

government policy as opposed to the wishes of the people;

4. That is, as it is known, the Indonesian Penal Code is a sadduction of

Wetboek van Strafrecht Nederland (W. v.S./Code

The Dutch Criminal Law) which was also enacted in the colonial state that

was colonial. in the sense of very beneficial interests

occupiers, therefore it was deliberately made a very wide rumusan

so that it is so that it can sedate everywhere it is known

as one of the rubber sections. There are still many chapters that

is a legacy of the Colonial Pemeirntah formulated and arranged

in the Penal Code of course it is no longer in the realm of independence,

the democratic era and the current era of reforms;

5. That the formulation of Article 160 of the Criminal Code by many circles

is considered to be a rubber section that could be used at any time by

the ruler to silence his political opponents, for that more

either the section is revoked or expressed no force

binding laws and replaced later in the Criminal Code with

assertive, clear and complete formula for any legal certainty

so that it can guarantee the constitutional rights of each citizen

in doing free speech rights, argues, conversed

and union that aims to create justice and prosperity

13

as mandated by UUD 1945;

6. That Article 160 of the Criminal Code may adversely affect the values

of democracy and human rights by violating the freedom of union,

assemble, and issue an opinion resulting in

loss to the demanding society. Its prosperity;

7. That Article 160 of the Penal Code may inhibit any person to

advance itself in champing its rights collectively

to build society, nation, and country;

8. That Article 160 of the Penal Code is not in line with the current reform mandate

which was rolled out since 10 years ago that demanded

freedom of opinion in public;

9. That Article 160 of the Criminal Code that defines the article

the sedition is either oral or written written

a person against the ruler is no longer compatible with

the development of society in the democratic nature of which currently

developing, in other words this section is considered to be unsuitable

with the democratic climate and the development of Indonesian society at

currently the increasingly advanced and critical;

10. That is because the Article 160 of the Penal Code is revoked

and/or otherwise has no binding legal force,

due to the democratic values and rights

humans in Indonesia do not. in accordance with the constitutional mandate

Unity State of the Republic of Indonesia;

11. That is based on the constitutional right of the applicant which has been

aggrieved, then:

a. That the applicant ' s right as a citizen for union,

gathered, issued the mind with oral and protected writing

by undang-undang;

b. That there is no immediate command from the applicant and/or incitement

that moves the other party to perform the action

in violation of the invite;

c. That the application of Article 160 of the Penal Code is not

14

is further used in the current democratic climate of Indonesia,

so it has positioned the applicant as a victim and

is a suspect in a criminal case;

d. That with Article 160 of the Criminal Code as an activist

and the petitioners of the petitioner in issuing an opinion,

criticizing the policy of impartial government to the people

as well as developing creativity in the order to reflect

the nation and its vast insights into being very limited;

e. That with Article 160 of the Criminal Code then

applied to the applicant currently status as

the suspect and may have developed its status to

the defendant, irrespective proven or unproven in the presence of

The futur that is a birthright;

11

12. That each person is entitled to the ease and treatment

specifically to obtain the same opportunity and benefits

achieve equality and justice;

13. That the Constitutional Court is in its legal consideration in

a case of plea Number 6/PUU-V/2007 citing the opinion of Dr.

Jayadi Damanik, SP.M. Si in the examination of the plea

testing of Article 160 of the Criminal Code, which was filed byesian Government issued

The President' s decision on the National Action Plan of Rights

Humans (RANHAM). Finally, the Government issued a Decision

President Number 40 of 2004 on the National Action Plan of Rights

Human Rights of Indonesia 2004-2009. One of the programs

RANHAM is the harmonization of laws

nationwide. The implementation of this harmonization includes:

1) conduct studies and studies of various programs-

invitations and national rules and/or regulations

regions relevant to international devices

human rights;

-applicable laws;

-designing new laws.

2) revised the applicable laws and/or

devising the laws of which a new suit

with the contents of the international human rights device that has been passed;

3) provides a briefing to the related law enforcement apparatus

regarding the contents of some of the human rights internaisonal devices that are

authorized;

The intent of the above exposure is to emphasize in the trial

this is that changes (updates and harmonization) perinvite-

invitations to be more in sync with human rights have become

the Indonesian state agenda;

C. The variant of the phrase in the laws related to

the rights to freedom of speech.

The rules of the invitation presents some phrases associated with

freedom of opinion, here we are cercerations the terms that

apply now:

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1. The 1945 Constitution used a variant of the phrase that can be read

in:

a. Article 28, "Independence union and assembly, issue

thoughts orally and writing and so forth are set with

legislation"

b. Article 28E verse (2), "Everyone is entitled to freedom of confidence

trust, state of mind and attitude in accordance with the heart

conscience"

c. Article 28 paragraph (3), "Everyone is entitled to a freedom of union,

assemble and issue an opinion"

d. Article 28I paragraph (1), " Right to life, right not to be tortured, rights

independence of mind and conscience, religious rights, rights to

not enslaved, the right to be recognized as personal in the presence

the law, and the right not to be prosecuted on the basis of the law

The receding is unmititable human rights

under any circumstances "

Then in Law Number 39 of 1999 concerning

Rights Human Rights, the diversity of free phrases issued

opinions can be read in:

a . Section 4, " right to life, to not be tortured, rights of freedom

personal, conscience dna conscience, religious right, right to not

enslaved, the right to be recognized as personal and equality in

face the law, the right not to be prosecuted on the basis of the law

Receding is human rights that cannot

minus in any circumstances and by anyone "

b. Section 23 of the paragraph (2), " Everyone is free to have,

issue and disseminate opinions in the heart

its conscience, orally and/or written through print

and electronic with Regard to religious values,

decency, order, general interest, and integrity

nation "

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c. Section 25, "Everyone has the right to express an opinion in

general advance, including the right to strike in accordance with

laws of the laws"

Next we find the diversity of the phrase in

International Covenant on Civil and Political Rights (Kovenan

International Civil and Political rights), which can be read in:

a. Article 18 paragraph (1), "Everyone is entitled to freedom of thought,

creed and religious". This right includes freedom

to establish religion or trust in its choices

alone, and freedom both independently and

together with others, in public or

closed, to run the religion or its beliefs in

worship, pentacompression, observance, and teaching activities "

b. Section 19 of the paragraph (1), "Everyone is entitled to an opinion

without being disturbed"

c. Section 19 of the paragraph (2), " Everyone is entitled to freedom for

states the opinion, this right includes freedom for

looking for, accepting, and providing any information and ideas,

without regard to medianya, either orally, written or

in print, in the form of art, or passing the media

other, in accordance with its options "

From the quote of the provision, at least three varieties phrase

that is independence thinking, freedom of opinion and freedom

state of opinion. In this trial, I did not mean to say

why there is such a variation, but rather simply would like to explain that

although there are some phrases on the right to freedom of speech,

the variant of the phrase could be used. alternately but point to

the same meaning. In other words, freedom ana thinks and freedom

argues that it can degrade rights as described in Article 19

Kovenan, by Act No. 12 of 2005 which is that any person

is entitled to the freedom to declare Opinion. This rights include

the freedom to seek, accept, and provide information and ideas

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anything regardless of its medium, either orally, in writing or

in print, in the form of art, or through other media,

in accordance with its options.

D. The Right to Freedom of Opinion function

Defacto, the right to freedom of opinion is the right

most important in human life, not only in order

a country but also in the framework of the organization social, religious

or business even as well in the family. Through the exercise of freedom

argues, we can build a community life that

commensurate with growing minds or we can

dig up a variety of creative minds to address the issues that are

faced by the public. In addition, we can also find out

A weakness in the organizational unit or unit of government

or we can figure out the weird problem faced by

society. Thus, the rights function of the freedom of speech is in fact

very positive in human life.

Indonesia has chosen democracy as a political sisteam. Democracy

must definitively always require an indefinite spell of opinion

with all its right to its derivatives. Because through the exercise of freedom

argues that the practice of government will be supervised by the people.

Thus the practice of democracy will be spared from the various actions

manipulation. Accordingly, the right to freedom of opinion has

a strategic function in the country of Indonesia;

E. The State and hts and

The responsibility of democracy in public life

nation and country "

The lifting of the facts above, it is clear that in terms of

availability of regulation, Indonesian legal politics has been put

18

human rights as one of the regulatory sources. Realized,

there are many applicable laws but still

not breathing or synchronous with human rights laws. That 's

why, since 1998 the Indonncarcerate Those

are critical thinking. In contrast to the following countries and

carry out demkoration political systems such as Indonesia. It has been the

general knowledge that in the democracies, the government

must come from the people, by the people and for the people. One

moral democracy is that the government should serve

the interests of the people. And this would be fulfilled if human rights were between

another freedom of opinion guaranteed and implemented entirely.

Thus, the enaccation of Article 160 of the Criminal Code in the democratic era

is the real threat to the right of the freedom of speech.

I. The Human Rights Comnas Related to the Renewal of the Penal Code

In line with developmental demands related to respect

on human rights, the Human Rights Commission has conducted the study of protection of rights

human in the KHUP bill then the results of that study

published to be Public consumption. Which draws from the study

and related to this courtroom matter is the statement as

following: " is a reality, the politics of criminal law is extremely vulnerable

is manipulated for the benefit of protecting the elite political control

the country. As a result, criminal law becomes a tool of repression, not keeping

order and rights of individual liberty and society "

Komnas HAM sees the renewal of the Criminal Code in order of rights

humans are indeed directed as part of a major reform project.

By laying out the renewal of the Criminal Code in the context of the big project

reform, then consciously we steer the politics of criminal law

on the protection of human rights and basic freedoms. The political direction

that is how we choose

the deeds that we qualify as a criminal offense

26

(criminalization) and which non-criminal acts

(decriminalization) will be included in the new Penal Code,

so that we may wish later criminal laws in the past.

front is the law that is aligned with the demands of the country that

democratic;

J. Conclusion

Based on the above exposure, then we conclude that

provisions of Article 160 KHUP are provisions that are contrary to

human rights especially freedom pendous or stated

opinion as guaranteed by the 1945 Constitution Article 28E paragraph (3),

"Everyone is entitled to the freedom of union, assemble and

issue an opinion" and other laws

which have been quoted above.

2. Daniel Dhakidae, Ph.D;

The whole process of matter concerning Dr. Rizal Ramli revolves around

on a resource problem, namely energy, oil fuel. The decision

raised the price of oil fuel was a major decision because

concerns the hajat of many people's lives and touches on all kinds

activities of a modern society, economically, socially, and culturally.

Therefore the people must be involved in taking that decision,

which decision concerns a major problem. The representative of the people of course

must play a role there. However, it was at all not

eliminating the direct participation of the people in various forms and

techniques. The technical execution of taking a direct part in

that decision could be arranged and could be negotiated. With this we speak

about direct democracy.

Democracy not solely means that an engaged in

votting and ballot, tried and cast ballots in the election

the general will but also in what is by Amartya Sen, Nobel Laureates

Economy, referred to as public deliberation and reasoning which means

provides consideration in the public and gives arguments-

supportive arguments and does not support for up to

decisions that means, and brings the consequences to the people. Public

27

deliberation is not only seen in the print or electronic media debate of

but also in pamphlets, statemen and slogans.

The one I said above is something that gives

the democratic order, and in this direct democracy. An act

democratic to take part in a decision

with various types of techniques. Various countries use various

techniques for it, as representative democracy does not itself

removing direct democracy. Some of the techniques used: referendues,

political statemen of interest groups and urged groups

(interest groups and pressure groups, and no less important is

a peaceful demonstration for the supporting or protesting, and solidiing

or changing the country ' s policy. Peaceful demonstration is not only a ride

protests in action but mainly protests

peacefully and uninvited and contains violence.

In its development in recent times the case is lifted

being a criminal case by taking a passage that is far from far --

far from the ancient, early twentieth century, when the colonial ruler

The Netherlands designed a systematic mastery of the region

known as Indonesia in ethical politics. The ethical politics really

is beautiful in name but its political ramiations are not as far-away as it is.

Where is the historical context of the times we call it? Which we

meant was the colonial development age to set

industrialization in the region, and because that required was the rust en

orde, security and order, where every disturbance is as small as what. pun

interpreted as something that shook the basics of industrialization

colonial and especially the foundation of the colonial state itself;

In order that was the passage used to be known as haatzaai

artikelen, the articles regarding "the cultivation and propagation of hate"

are made. This section effectively destroys almost all of the motions

national from across the perspective, from left to right. Figures

national of all calibers arrested and imprisoned, disposed of

based on those passages. The nationalist press organ was breidel

based on the articles. It's tragic, the New Order is the regime

The most understanding of how to use the above sections for

28

retweeted national newspapers from the early 1970s to

the moments of the New Order reached a dying period in the middle of 1990-

an. This means that during the twenty-year period victims

scattered both persons and organs, individuals or institutions;

In the New Order period this could be understood as the New Order country

New was " a foreign country.

or what the experts are called

"alien state", a country apart from its people, the country that is

so much so that it is only connected by two things, violence and

money. Violence to destroy those who annoy rust en

orde, security andreak-after:always">

25

feudal indeed requires a criminal legal instrument to

protect it. The protection was necessary because of the feudal government

not serving the people but rather to its ruler (himself)

alone. The practice of extortion and oppression often occurs in the

feudal government. Therefore, the potential for the resistance of the people and

the popular uprising, held much in the feudal government.

One way of controlling that potential is to use

the criminal law to capture and in legal interaction (legal action)

later as in his day Suharto alone became "repressive law" as

written incrementally by Nonnet and Selznick. "Rule of Law" to

"rule by law" and it could be like the windmill changed to "rule above

the law" ahead of the tyrant's arm.

The law without democracy is obviously no meaningful, let alone if

democracy is plotted to be "democrazy" like my first time

uncovered in the New Order era. If there are "democracies" as of now

this, which is also questioned by many pundits and observers, then

the law goed in Senayan to "legislatieve misbaksel" Meaning

will fry the egg so the calf turns out to be So the eggs are scrambled. The sense of telor

is still the same but it needs the Constitutional Court to dress it/

test it back. By referring to Nonnet and Selznick,

the law is supposed to be "responsive law" where the core rights

Man (HAM) should be as "conditio sine qua non". So the law

32

with "raison d' etre" a new human rights democracy can be called

"responsive law" and it just could be constitutional.

D. Article 160 of the KUHP/W. v.S is clearly a "repressive law" although President

susilo Bambang Yudhoyono in Kompas, 31 October

2004 said "I beg you to be criticized" and even if Wirjono

Projodikoro I respect argues that Article 160 of the Criminal Code

is a formyl delik, I clearly refuse and disapprove. Jessup

once wrote "if what the scholar said is not subject to criticism, it might

as well be left unsaid". Thus Article 160 is a colonial materiel delik

ondanks there are "smaad" or "opruien". In my search, there is no

HR arrest about this article in the Netherlands According to Hazewinkel-Suringa, Van

Hamel rejects this article;

Morality in Indonesia is indeed severe. People

presumptively religious but ritually and engaged KKN. The people now

suffer. If suffering economically is indeed bitter, but if

suffers from injustice, then the bitterness is really very

stranglehold. Emil Bruner wrote "Lijden is bitter, maar onrecht-vaardig

lijden is dubbel bitter" (suffering is bitter, but suffering because

injustice is unusually very, very bitter or cruel). By

therefore please the Supreme Constitutional Court read among others

book HMT Oppusunggru, "Hilden scepter SBY" Also

The noble Constitutional Court could find in the Republika newspaper

17 May 2008 where Amien Rais said. "Don't drop it and don't.

Pick again SBY". Is it a smaad or an opruien? Amien Rais criticizes

factually, dus is not utens/memfitnah;

E. Kesan I have some sort of engineering with a select shoot let alone

ahead of Election. I was disappointed even though in Yogyakarta 16 years ago

ago (vide Kompas 03-02 1993). I was the first to ask for Polri

not to be "konco wingking" ABRI and that I repeat again at the time

meeting/facing the President. But what a cur! Polri does not enforce

human rights and such as discriminatory firing. News in the Polri press press

already contamination of various diseases including KKN. Simak fatwa MUI

with the result of the house of the Ahmadic worship burned/dirt;

33

How with John Perkins writing "Confession of an economic Hit

man (2004) and"The Secret History of the American Empire" (2007)

regardless of Leo Polak's phrase that "Het Strafrecht is het

ongelukkigste deel van het rechf" (Criminal law is the law that

most ridiculous). Bianchi has also written so, Om een hond te slaan vindt men

licht een stok. It is easy to find a cane to hit a dog.

Both human rights provisions in the 1945 Constitution, nor the Convention

International human rights, Article 160 W. v.S/Criminal Code must be dumped by

The Constitutional Court as an inconstitutional article. I always

wrestle with the sage phrase that "Our lives begin to end the day

we become silent about things that matter". With another life saying

we (I) don't mean to shut up looking at KKN

and the deformation is rampant as well as no more moral and ethical

this adult. Not to mention the KKN is rampant everywhere. "Er is wet

pers vrijhijd, maar geen vrijheid in de pers". The press press continues

in the fight for freedom of the press. Yet there is no freedom

in the press aliases are still the days of nonsense. Structural violence

(Johan Galtung) including KKN is still ongoing in all

structural layers of society, vertical and horizontal, both

secular and spiritually;

Conclusion:

1. Article 160 of the KUHP/W. v.S is unconstitutional because it is bound to bind

democracy freedom of speech, freedom of speech, freedom

argues and especially human rights;

2. Article 160 of the KUHP/W. v.S is unconstitutional because

chained to democratic freedom of speech, freedom of speech,

freedom of speech and especially human rights as is set

in the 1945 Constitution and the International Human Rights Convention;

3. Law enforcement officials have been engineered or engineered to play

firing discriminately ahead of the Election;

4. Article 160 of the KUHP/W. v.S is not a formyl delik but rather a material delik

colonial and raison d' etra of this chapter in the era of contradictory reforms

with the 1945 Constitution;

34

4. Dr. Rudi Satrio, S.H., M.H.,

Article 160 of the Criminal Code, "Whose public goods are in public with oral or written

inciting for criminal conduct, violence

against the general ruler or disobeiers both the invite-

invite and title orders provided under the terms

legislation, threatened with a six-year-old prison criminal

utau criminal fines are at most four thousand five Hundred rupiah "

A. The place of Article 160 in the Penal Code and its meaning

Article 160 is contained in the Second Book of Chapter V Crime Against

General Order (open bare orde) is a collection of articles that

contains an idation, criminalization of against any actions that if

assessed by the ruler may or have the potential to be able to

incur a disruption to public order.

This passage is indispenable for the ruler, because of these articles

is intended to exist or be created to be able to maintain its own

reign. Because the creation of a general order in society would

be able to guarantee the survival of a ruler

because the general order in society would be a guarantee

a ruler would remain in the park. government.

Guarantee to remain,

let alone Pancasila be inducted into the Mukadimah UUD 1945. Dear,

many people, including legislators, politicians/politicians, para

bureaucrats, law enforcement officers and nation leaders and

countries with notes "de urtzondeongeti bevestigett be tegel" alias exists

The exception, having harassed Pancasila into "pencak silat". In

my Suharto era was already able to do that in the writings

I;

C. Some say Indonesia is a legal country by referring

to the 1945 Constitution. If so, thep>

LambangState

Section 283

" Any person who desecrated the National Flag, National Anthem,

or the Republic of Indonesia State Emblem, was convicted of a criminal

prison most long (four) the year or penal of the most fine

Category IV ".

paragraph 2

An insult to the Government of Article 284

" Every person in the public face is insulting to

The legitimate government that results in an occurrence of inaction in

society, The penultimate prison criminal is 3 (three) years

or the criminal fines of the most Category IV. "

Section 285

(1) " Any person who broadcasts, shows, or

pasts the writing or image so it is visible to the public, or

listen to the tape so that it sounds public, which

contains an insult to a legitimate government with intent

in order for the public disdain to be known for the occurrence of

on the public, convicted of the most criminal prison

old 3 (three) years or penal fines most Category IV. "

(2) " If the creator of the criminal as referred to in paragraph (1)

does the deed in the running of its profession and

at that time it has not been 2 (two) years since the verdict

the idler has been obtaining a fixed legal force because

committing the same criminal act, then it can be penal for

39

additional revocation of rights as specified in

Article 91 paragraph (1) of the letter g;

Paragraph 3

The disdain for the People's Group Article 286

" Any person in the public is insulting against one

or some of the Indonesian population that can be determined

based on race, nationality, ethnicity, skin color, and religion, or

against a group that can be determined based on gender,

age, mental disability, or physical disability that results in the onset of violence

against people or the goods, convicted of the longest prison criminal

4 (four) years or criminal fines of the most Category IV. "

Section 287

(1) " Everyone who broadcasts, shows, or pasts

posts or images so it is visible to the public or

listen to the tape so that it sounds public, which

contains a statement a feeling of hostility with the intent to contain it

known or better known to the general, against one or

some of the group of Indonesian residents who can be determined

based on race, nationality, etnik, skin color, and religion, or

against a group that can be determined based on gender,

age, mental disability, or physical disability that results in a result of

violence against persons or goods, criminalised with criminal

prison for longest 4 (four) years or penal fines of the most

Categorates

(2) " If criminal charges as referred to in paragraph (1)

do so in the running of his profession and

at that time it has not been 2 (two) years since the ruling

which has acquired the legal force fixed because

committing the same criminal offense, then it can be penal for

additional revocation of the rights as referred to in

Article 91 paragraph (1) of the letter g "

40

Second Bagian

Incitement and Quote to Do Criminal Tindak

Paragraf1

Incitement to Fight Confirmation

Article 288

" Any person in public with oral or writing inciting

persons to commit felon or inciting people to

against common rulers with violence, convict with criminal

the most punitive prison with a prison criminal of the longest 4 (four)

year or criminal fines at most Category IV.

D. Awareness of Iangsung or non-independent legal products

Iangsung relates to independence stating

that contains the term "common interest" and "public order".

President Suharto's government more of the 30 years was replaced by

President BJ ' s government. -Habibie. This government ruled

for a period of less than 1 (one) year. The public hopes

a lot of changes by this government, especially those

relating to the economy, legal supremacy, and awards,

as well as protection against human rights. To respond

the people's aspirations of the B.J. Habibie government cabinet were formed

and named the Reform Cabinet.

In law, history notes that the only cabinet

age one this year has made Lots of new laws. From

a number of new laws, should be alert-

invite who has direct or indirect relations

with the independence of the people to express opinions to

government, people's independence. to declare criticism to

the government, and the independence of the press. This concern is necessary because,

in the history of the Indonesian nation, from the colonial era

The Netherlands until the New Order government, has happened

the restraint on independence expressed criticism to the

government. The product of the bill is:

41

a. Constitution of the Republic of Indonesia No. 36 of 1999 on

Telecommunications (promulred on September 8, 1999

State Sheet of RI Number 154 Year 1999);

b. Constitution of the Republic of Indonesia No. 40 of 1999 on

Press (promulred on 23 September 1999 Lembatran

Country RI Number 166 Year 1999);

c. Law No. 39 of 1999 on Human Rights

(promulded on 23 September 1999 the State Gazette of the Republic of Indonesia

Nomor165 in 1999);

d. Law Number 9 of 1998 on Independence

Deliying an Opinion in the General Muka (promulbed 26 October

1998 The State Sheet of RI Number 181 in 1999); and

e. Law Number 1 of 1995 on Limited Perseroan

(promulgated March 7, 1995, State Sheet RI Number 13 Year

1995);

All such laws should be attenuated, as not

closed possibilities that its presence would reduce

the meaning of independence expressed an opinion that has been achieved by

the people of Indonesia with reforms. This is due to the loading

terms for "general interest", "public order", "nation integrity"

The history of the law suggests that since

the Dutch colonial period of the term is already in place. "openbare orde"

"rust en orde". In reality the term is not clearly its size.

An indefinite and highly flexible understanding (luwes) limits-

its limits. Then what clearly appears is that the term is " arbitrary being used by the government (ruler) to

perform the act of restraint on independence stating

opinions, independence of the press, and independence. to criticize in

the government (ruler).

[2.4] Draw that, aside from that, the applicant has also filed a witness,

who heard his pending review on March 12 and 19, 2009

who in his position explained as follows:

42

public order. The standard is the result of an occurrence

in society. Generally the standard has existed in

almost all of the articles that regulate the criminal act against

public order:

38

BAB V

CRIMINAL CONDUCT AGAINST PUBLIC ORDER

BagianKesatu

Disrepudiation of the State, Government, and Golongan Symbols

Population

Paragraf1

The desecration of the National Flag, National Anthem, and

with the development of the community and the principle of the Unity State

the republic of Indonesia that is governed in the promulcity;

c. the public or private legal entity, or;

d. the state agency

Then in its explanation stated, that what

with "constitutional rights" is the rights set in the Constitution

1945. The more landscape of the Constitutional Court has been given understanding and

cumulative limitations on the loss of rights and/or authority

its constitutionality arising from the enactment of a law

according to Article 51 of the paragraph (1) Act of 24 Years 2003 on the Court

Constitution (vide Putermination 006 /PUU-III/2005 and the subsequent ruling), must meet five conditions, namely:

a. the existence of constitutional rights granted by the 1945 Constitution;

b. that the applicant ' s constitutional right is considered by the applicant

has been harmed by a legislation being tested;

46

c. that the constitutional losses are specific (specifically) and

actual or at least any potential that according to

reasonable reasoning is certain to occur;

d. Due (causal verban) between loss and

enactment of the legislation movedown testing;

e. It is possible that with the application of the request

then the constitutional loss postured will not be or no longer

occurring;

With regard to such provisions above, and

based on Previous court rulings, related to

legal standing (legal standing) applicant standing as

General Chairman of the Indonesian Rising Committee (KBI), and was made a suspect

by Polri investigators based on Surat Call Number

Pol: SPGL/1293/XII/2008/DIT.1. Dated December 31, 2008, then

The Government cees fully to the Court to

assess it, whether the applicant has a legal position or not

in the application of testing provisions of Article 160 of the Criminal Code as

specified Section 51 of the paragraph (1) of the MK Act;

III. Government Explanation of Application Testing Article 160

KUHP.

In relation to the presumption of the applicant in his request that

states that the provisions of Article 160 of the Criminal Code, which states,

" Whoever is oral or with writing is instilled in advance

general, so that people doing something criminal or against

general ruler with violence, so do not according to something

laws or orders of office, which are granted

according to the regulations laws, penalised with criminal

prisons for up to six years, or as many fines

four thousand five hundred rupiah "

The provisions above by the applicant are deemed to be contrary to

Article 18, Article 28C paragraph (2), Section 28E paragraph (2) dna paragraph (3), as well as Section

28G verse (1) UUD 1945, which states as follows:

47

Article 28

"Independence union and assembly, issue a thought with

Oral and writing and so forth are set by law."

Article 28C paragraph (2)

"Everyone has the right to advance itself in the fight for

collectively the right to build society, nation, and

country."

Article 28E

paragraph (2), "Everyone is entitled to the freedom of belief in trust,

states the mind and attitude, according to its conscience."

paragraph (3), "Everyone is entitled to freedom of union, assemble and

issue an opinion."

Article 28G paragraph (1)

"Everyone is entitled to personal protection, family,

honor, dignity, and property under his power,

and entitled to a sense of safety and protection from the threat of fear

to commit or not to do something that is his birthright. "

A. Against the presumption/reason the applicant is above,

The government can convey things as follows:

1. The government has argued that the provisions of Article 160 of the Criminal Code

contain legal norms to provide

protection against society from criminal acts,

protecting the general ruler in exercising its duties from

acts of violence and prevents any occurrence of insubordination

or dismay for disobeying the legislation or

the command of the office is given based on the undying;

2. The act of sedition banned in Article 160 of the Criminal Code

is to incite another person with oral or written words to:

a. committing a felony;

b. To commit violence to the general ruler,

48

c. does not comply with the laws, or

d. not complying with a given office order

under the rules of the legislation;

Thus the work of the loaded sedition

in Article 160 of the Criminal Code is limitative that it must contain

fourth Deed material on top. This means that the deed

the sedition must not be construed as widespread or not

limited or all included, but only in relation to

all four acts;

3. The government has argued that if Article 160 of the Criminal Code is repealed

or declared unconstitutional, there is no legal basis

to prevent people intending to incite others

in order to commit a criminal offence, conducting a violent

to the general ruler, disobeying the rules of the invite-

invitation, or disobeying a command of the title

given under the laws of the laws;

4. That if found a criminal law enforcement practice that

does not correspond to the intent and purpose of the criminal legal norm

(maqosid) contained in Article 160 of the Criminal Code and adversely

the legal interests of others, preferably the person

does a legal effort in accordance with the legal rights that

owns, because if there is a mistake it lies in the apparatus

its law enforcement and not the norm of criminal law

contained in Article 160 The KUHP is;

5. That if there is a problem in law enforcement or

the provisions of Article 160 of the Criminal Code, then it is according to the Government

not the scope of the material testing of a norm that exists

in legislation that is the authority Court

Constitution.

B. The Applicant's Description

1. Daniel Dhakidae, Ph.D, at its core stated:

49

a. that l' esprit de la loi or the spirit of the law which is the soul

legislation of Article 160 of the Penal Code contains principles-

the principle of oppression derived from the Dutch colonial system,

that is basically aiming for a oppress the press, opinion para

experts, professors who have different opinions;

b. that l' esprit de la loi oparagraph (2) and

paragraph (3), and Article 28G paragraph (1) of the 1945 Constitution;

II. About the Legal Standing (Legal Standing) the applicant

In accordance with the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003

on the Constitutional Court, that the Applicant is a party

considers the right and/or authority to be Your constitutionality was harmed by

the invite-invite, i.e.:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long asp>maintain power;

7. That expert from the applicant is Prof. Dr. J. E. Sahetapy and Dr.

Rudy Satrio Mukantarjo stated if you want to maintain

Article 160 of the Criminal Code then Article 160 of the Criminal Code must be reconstructed

as a material delik even Dr. Rudy Satrio Mukantarjo

stated that in person it could still accept the presence of

Article 160 of the Criminal Code but was reconstructed so as not to inflict

an act of authority;

8. That as such a witness of fact and expert from the applicant

is filed in the trial no one explains

the conflict between the norms of Article 160 of the Criminal Code to the provisions

Article 28, Section 28C paragraph (2), Article 28E (2) and verse (3),

Article 28G paragraph (1) of the 1945 Constitution;

For those matters, the Government is essentially very appreciable

The critical way of view of the applicant against

various policies undertaken by the Government, starting from

monetary policy, foreign debt up to policy

adjustments raise the price of oil fuel (BBM). This

according to the Pemeirntah as the embodiment of everyone's rights

for free union and assembly to issue thoughts

with oral and writing, expressed attitude according to the heart

the conscience, and the fight for its rights collectively to

build society, nation and country, as

guaranteed by the provisions of Article 28, Section 28C paragraph (2), Article 28E paragraph

(2) and paragraph (3), Article 28G paragraph (1) of the 1945 Constitution, but in

implementing and embodour constitutional rights as guaranteed

in the constitution such, may not be done in ways

contrary to religious norms, norms of decency,

general order and legal norms, as set in

Article 28J paragraph (2) of the 1945 Constitution, which reads, " In running

rights and freedom, each person is mandatory to submit to

54

the restrictions set out with legislation with intent

solely to guarantee recognition as well as respect for

the rights and liberties of others and to meet the fair demands

in accordance with moral considerations, religious values, security, and

Public order in a dematic society ".

In addition to the Government according to the Government, which is supposed to be done by

The applicant is whether the investigation and investigation process that

conducted by the police investigator has been in accordance with the regulations

the laws apply (in this case the Event Law

Criminal), if not, then the applicant may make a legal effort,

that is filing a pre-trial lawsuit to the State Court,

for not the impossible if the applicant is making an effort

The law, the actions of Polri's investigators are conducting an investigation,

inquiry, arrest and imprisonment may be declared invalid;

In other words according to Pemeirntah, what is experienced by

The applicant is solely concerned with the application of the law

(implementation) the norm performed by Polri investigators and

are therefore not related to the matter of the constitutionality

The enforcement of the legislation is being moorled;

From the description above, the Government argues that

provisions of Article 160 of the Criminal Code not in conflict with Article 28,

Article 28C paragraph (2), Article 28E of paragraph (2) and paragraph (3), Article 28G paragraph

(1) of the 1945 Constitution, and does not harm the constitutional right of the applicant;

D. Conclusion

Based on that explanation and argumentation above,

The government implored the Court to be able to provide

the verdict as follows:

1. Stating that the applicant does not have a legal position

(legal standing);

2. Rejecting the applicant's request entirely or at least

states that the applicant is not acceptable (niet

onvankelijk verklaard);

55

3. Stating the provisions of Article 160 of the Criminal Code do not conflict

with the accuracy of Article 28, Section 28C paragraph (2), Article 28E paragraph (2)

and paragraph (3), Article 28G of paragraph (1) of the 1945 Constitution.

[2.6] Draw that the applicant has submitted a written conclusion

each dated 15 July 2009 accepted in Kepaniteraan

The court on 17 July 2009;

[2.7] weighed that to shorten the description of this ruling, all of

something happening at the trial, is appointed in the Event Event News,

and is one unbreakable unit with this disconnect;

3. LEGAL CONSIDERATIONS

[3.1] Balanced that the intent and purpose of the applicant is

testing the constitutionality of Article 160 of the Code of Criminal Law

(KUHP) which is considered to be contrary to the Basic Law of the State

Republic of Indonesia in 1945 (later called UUD 1945).

[3.2] Draw, before considering the Subject,

The Constitutional Court (later called the Court) should

consider it first:

1. The Court's authority to examine, prosecute, and disconnect

plea a quo;

2. Legal standing (legal standing) the applicant to act as

The applicant in the a quo request.

Against these two things, the Court argues as follows:

The authority of the Court

[3.3] weighing that according to Article 24C of the paragraph (1) of the 1945 Constitution and Article 10

paragraph (1) the letter of Act Number 24 of 2003 about the Constitutional Court

Constitution (State Sheet of the Republic of Indonesia 2003 No. 98,

Additional leaf of the Republic of Indonesia Number 4316, next

called Act MK), juncto Section 12 paragraph (1) letter of the Number of Laws 4

56

in 2004 on the Power of Justice (Republican Gazette

Indonesia Year 2004 No. 8, Supplement to the Republic of State

Indonesia Number 4358) The court of competent authorities tried at first level

and The final verdict is final to, among others, test the invite-

invite against the Constitution of 1945;

That based on such things, the Court is prime facie

authorities to examine, prosecute, and disconnect a quo request

will be considered further in Pokok Plea;

Legal Occupation (Legal Standing) applicant

[3.5] weighed that under Article 51 of the paragraph (1) MK Act, which could

apply for test of legislation against UUD 1945,

between Another person is an Indonesian individual who considers the right

and/or its constitutional authority granted by the 1945 Constitution

aggrieved by the enactment of a law. In the meantime, the Court's

since the Number 006 /PUU-III/ 2005 dated May 31, 2005 and Putermination

No. 11 /PUU-V/2007 dated September 20, 2007, 08 in

Wisma PKBI South Jakarta was a thought

about the idea of a new path on policy or politics

the economy to improve the economic situation of Indonesia

and not to incite that held a demonstration that

ends with the anarkhis;

53

6. While the applicant of the applicant is filed in the trial

on the point of explaining that in law enforcement

Article 160 of the Criminal Code may be used by the ruler to

<p>feudal did not serve the people but to the ruler

or to himself;

Despite inciting on essentially meaningful negative but in

different governance conditions, inciting can be positive value

as done by the movement figures at times

Dutch colonization, so Article 160 if placed in context

different politics and social values can be of negative value and can be

is worth positis. As such, Article 160 of the Criminal Code does not contain

clarity, hence the word inciting should be made clear;

The Empowerment of Article 160 of the Criminal Code in the democratic era is a threat

real to the rights especially the right to freedom argues;

2. Expert Daniel Dhakidae, Ph.D;

Article 160 of the Penal Code comes from the early days of the XX century when ruler

Dutch colonial rule over political ethics was about to design one mastery

systematic against the Dutch East Indies;

Politics It is beautiful in its name but its political consequences are not

seelok its name, where in the colonial development period to

organize industrialization in the Dutch East Indies, which required is

security and order so that any security disorder as small

anything is interpreted as something that shakes basics

colonial industrialization and especially the foundation of the colonial state itself.

In order that was born post-articles regarding planting and

the spread of hate;

The soul of the legislation is tied to the context of the age when invite-

invite is made, so do the legal spirit in Article 160

61

KUHP is to perpetuate colonial power while

cut off the rights of the people. Thus Article 160 KHUP should

be revoked for counting democratic principles.

3. Expert Prof. Dr. J.E. Sahetapy, S.H.

Article 160 of the Criminal Code is unconstitutional because it is bound to be bound

democracy, freedom of speech, freedom of writing, freedom

argues and especially human rights as set in the 1945 Constitution

and the International Human Rights Convention;

law enforcement agencies have been engineered or engineered to play

shoot discriminately ahead of the Election;

Article 160 of the Criminal Code is not a formyl delik but rather a colonial materiel delik and

"raison d' etre" of this article in the era of reform contradictory to the Constitution

1945.

4. Expert Dr. Rudi Satrio, S.H., M.H.

Article 160 of the Criminal Code contained in the Second Book of Chapter V Crime

Against Public Order, is a collection of passages that

contains an idation of any actions that if assessed by

rulers can have potential interference with

public order, so that the sections a quo can be used to

perpetuate the power because of the common order in

the public will be able to guarantee the survival of

ruler;

Article 160 Formulated as a formyl delik that does not require

proof of sedition, so the most important is

there has been a series of sentences that a person has spoken

and is of inciting value;

• The article 160 of the Penal Code is formulated materially so that

requires that the causality principle contained meaning

that people can be held in criminal responsibility not only-

an eye for what he says. but it must be proven.

formerly a result of what has been It does;

62

5. Witness Adi Massardi

Dr. Rizal Ramli as General Chairman of the Indonesian Rising Committee in

a speech criticising the very sharp government measures

(especially the last government), over 40 years past

overdictated by mafia groups such as the IMF and the World Bank;

Dr. Rizal Ramli ' s Speech in the Indonesia Rising Committee Declaration

is considered a very harsh criticism, as it was a few weeks later

appears a threat to Dr. Rizal Ramli that concerned would

be stripped of the his position as President of the Commissioner of PT.Semen Gresik,

there is even a certain team to examine, whether in office

Dr. Rizal Ramli once did corruption or not, and it turns out that

is proven;

At On 24 April 2008 in his order, Dr. Rizal Ramli repeats

re-behaved as his order on the Rising Committee declaration

Indonesia, but as long as it does not matter. There was then a show

a sense that supports the right of the DPR but in

the protests were violent and according to the Head of the Agency

State Intelligence (BIN) Syamsir Siregar, the Indonesian Rising Committee " existed. in

behind "the protest";

When a witness is asked by an investigator, listen to the recording

Dr. Rizal Ramli's speech on April 24, 2008 and which was asked always

Dr. Rzal Ramli's speech material. criticized the government;

A few weeks after there was a June 24, 2008 rally there ' s an issue

Dr. Rizal Ramli will be named as a suspect as it is considered an

instigator.

6. K.H. Sholahudin Wahid

The witness attended a meeting on the 14 april 2008 tangal at the top PKBI

invitation of the Indonesian Rising Committee (KBI). On that occasion,

Dr. Rizal Ramli delivered his thoughts developed

by KBI and the thoughts are the same as the one that was heard by

before or after;

63

The thoughts are that the kebijkan or political economy that

taken by the government is erroneously and according to Dr. Rizal Ramli

as the economic expert that economic policy or political is

is not appropriate and needs to be changed, while a witness is not

knows which one is accepted by the audience and then considered

as something in its nature to incite;

[3.12] A draw that the Court has been read the written caption

The government that in its office states:

Article 160 KUHP contains legal norms to provide

protection against society from criminal acts, protect

general rulers in exercising its duties of acts of violence

and preventing a occurrence of defiance or untertiban because not

obeys a given law or office command based on

undrases;

The artificial agitator loaded in Article 160 of the Criminal Code is limitative

that is must contain the fourth Matter of action: (i) performing the act

criminal, (ii) do a violence to the general ruler, (iii) not

complying with laws, or (iv) does not comply with any

office commands provided under the perinvite rule-

the invitation. This means that the act of sedition should not

be interpreted to extend or not be limited or all included, but

only in relation to all four works;

If Article 160 of the Code of Penitation is stated unconstitutional, then there is no basis

law to prevent people intending to incite the

ott

another person;

60

o Article 160 KHUP especially in the word "inciting" contains

the most highly lensed norm so that it opens up a very wide space

to be interpreted according to the interest that runs

the law;

o The socio-political context of the formulation and the enaccation of Article 160 KHUP

is a feudal concept. In feudal power requires

a criminal legal instrument to protect it because the rule

<n effect to date is derived from Wetboek van Strafrecht

The Netherlands of 1886 which was later based on the concordance principle

67

was imposed in the Dutch East Indies as Wetboek van Strafrecht voor

Nederlandsch-Indie. After Indonesia was occupied by Japan in 1942,

The Government of Japan issued a Regulation that stipulated that S. 1915

Number 732 remains in effect. Similarly, after Indonesia became independent, Wetboek

van Strafrecht voor Nederlandsch-Indie was enacted in accordance with

provisions of Article II of the Constitution of the Constitution of 1945 (before it does

change) reads, "All existing state and regulatory bodies

still directly applies as long as it has not been held as new according to Invite-

Invite This Basic". Then, with the adjustment here, Wetboek van

Strafrecht voor Nederlandsch-Indie was enacted with the Invite-

Invite Number 1 Year 1946 on Criminal Law Ordinance in accordance with

the legal system and the state system of Indonesian independence. Furthermore,

after the change of the Constitution of 1945, Act No. 1 of the Year

1946 is based on Article I of the Constitution of the Constitution of 1945 which reads,

" Any existing laws still remain in effect during the

has not been held new by this Basic Law ". In Invite-

Invite Number 1 Year 1946, there are some important things as

following:

(1)" Section V determining that the regulation criminal law entirely

or some now cannot be executed or contrary to

the position of Indonesia as an independent state or no meaning

again should be deemed inapplicable;

(2) Article VI changed with the official Wetboek van Strafrecht only, which

commonly translated with the Criminal Law Act abbreviated

KUHP;

(3) Article VIII contains changes to the words and deletion of some of the chapters

KUHP;

(4) Adanya the creation of new delics contained in Section IX to the

Article XVI ".

Tatkala Indonesia became a federal state, with the establishment of the Republic

United States (RIS) under the Constitution of the Republic of Indonesia

(Constitution RIS 1949), and then again became a unified state. with

the base of the Temporary Basic Law of 1950 (UUDS 1950), where

under the provisions of Article 142 UUDS 1950, " All rules,

68

legislation, and regulatory provisions already existing since 17

August 1950 remained in effect unchanged as the rules

and the provisions of the Republic of Indonesia Alone, during and just

The rules and regulations were not repealed, plus, or

changed by legislation and the provisions of the power of the power

UUDS 1950 ".

Next, as a result of the provisions in that 1950 UUDS,

then In Indonesia, two penal law laws:

(1) the Criminal Law Act on 8 March 1942 that

passed and entered into force on 26 February 1946 and changed according to

the Indonesian atmosphere. independent with Act No. 1 of 1946

applicable in the former State of the Republic of Indonesia-old form;

(2) the Criminal Law Act on August 17, 1950,

that is the Code of the Age the Dutch East Indies government that

has been changed and coupled with the provisions of the Sheet

State of 1945 Number 135, 1946 Number 76, Year 1947 Number

180, 1948 Number 169, 1949 Number 1 and Number 258, which

applies to the Greater Jakarta area, the territory of the former State of Sumatra

East, the former State of East Indonesia and West Kalimantan.

Both laws of the criminal law are actually from

same source that Wetboek van Strafrecht Netherlands then,

based on asas concordance, enforced in the Dutch East Indies since 1918

under the name Wetboek van Strafrecht Nederlandsch-Indie voor ("Nederlandsch-Indie Voor") against

the entire population, which is either the Bumiputra, group

of the Foreign, and the European group, where it has previously been in effect.

The group of the population is valid. The Law of the Law

The criminal itself.

Next through Law Number 73 of 1958 (State Sheet of 1958

Number 127) stated that the Law No. 1 of 1946 on

The Criminal Law Regulation applies to the entire territory of the Republic of Indonesia

with some changes in accordance with the state state of the Republic of Indonesia

as amended Article III of the Law No. 73 Year 1958;

[3.13.4] That with a brief history of the Criminal Code above as well as with

pay attention to politics the criminal law of Indonesia as an independent state and

69

sovereign, as reflected in Act Number 1 of the Year

1946, is important to be aware of the provisions of Article V of the No. 1 Year Act

1946 that reads, " The laws of the criminal law which are entirely or partly

now cannot be run or contradictory to the Republican position

Indonesia as an independent state or has no meaning, should

be considered in whole or in part not Valid ". In other words, since

the 1946-forming Act has been realized that

there is a provision in the Penal Code that is no longer applicable because it is not

in accordance with the position of the Republic of Indonesia as a independent state.

According to the Court, the phrase "the Republic of Indonesia as an independent state" should

be interpreted to be the Republic of Indonesia established

based on the Constitution of 1945 which according to the Indonesian Umumm Explanation of the Constitution of Indonesia, the Republic of Indonesia is

a country based on the law, so the main problem that must

be considered by the Court is whether Article 160 of the Criminal Code, with

the formula as it has been quoted above, in accordance with the position

Indonesia as an independent state based on the 1945 Constitution that upheld

rights Human rights as one of the principles in the state of law;

[3.13.5] That although in its history the Penal Code dates back to colonial times

The Netherlands, but the legal issues that must be answered, that is how if

there are legal products from the colonial period but it turns out that the norma substance

remains appropriate with Indonesian legal flavor as a democracy that

based on a democratic law and state of law?

[3.14] A draw that to answer the above legal issue

is associated with the applicant ' s dalil-dalil, the Court argued as follows.

[3.14.1] That according to the applicant, the norm was conceived in Article 160

KUHP reads, " Whose goods are public with oral or with

ed to have a different community life background

with Indonesia as an independent state that upholds democracy,

so that the a quo are considered to be unsuitable for aspiration and dynamics

the development as well as the legal needs of the independent Indonesian society.

Before providing an assessment of the applicant ' s request, the Court

needs to review it first overview history of KUHP in Indonesia as

following.

[3.13.3] That, according to its history, can briefly be said that

KUHP i

and the assassination of the petitioner's political career, according to the Court of Justice

is not related to the norms of norms of norms, but rather pertinent to

losses suffered as a result of an imprecise application of the law;

[3.15] A draw that according to the Government Expert ' s caption, the concept

the draft of the Penal Code despite the constant provision of similar criminal acts,

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The deform formulation is no longer a formyl delik instead of being converted to a delik

materiel. The development shows a trend of predisposition

changes and political renewal of criminal law to the formulation

delik that is not contrary to the spirit of realizing Indonesia as

the legal country democratic and state-based democracies

the laws that are the soul of the Constitution of 1945. This is in line with the opinion

The court as it has been described in paragraph [3.14.1] above.

4. KONKLUSI

Based on all facts and laws as described above,

The court concluded that:

[4.1] The court is checking, prosecuting and severing the case

a quo;

[4.2] The applicant have legal standing (legal standing) to submit

a plea a quo;

[4.3] Article 160 of the Criminal Code is conditionally constitutional in a sense

the constitutional extent is interpreted as a material delicality.

5. AMAR RULING

By recalling the Constitution of the Republic of Indonesia

in 1945 and Article 56 of the paragraph (5) Act No. 24 of 2003

on the Constitutional Court (State Sheet of the Republic of the Republic of Indonesia) Indonesia Year

2003 Number 98, Additional State Sheet Republic Indonesia Number 4316);

Prosecute,

Declare The Applicant's plea.

So it was decided in a Meeting of the Judges

attended by nine Constitutional Judges on Tuesday of the fourteenth

month July two thousand nine, and spoken in the Plenary Session

The Constitutional Court is open to the public on Wednesday twenty-two

in July of the two thousand nine, by the nine Justices of the Constitution, namely the Moh.

Mahfud MD., as Chairman of the Member, Abdul Mukthie Fadjar, M. Arsyad

74

Sanusi, Muhammad Alim, Achmad Sodiki, Harjono, Maria Farida Indrati, Maruarar

Siahaan, and M. Akil Mochtar, respectively as Members, with assisted

by Makhfud as the Panitera Replacement, as well as attended by The applicant or

its ruler, the House of Representatives and/or the representing, and the Government

and/or represents.

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

MEMBERS, ttd. ttd.

Abdul Mukthie Fadjar M. Arsyad Sanusi ttd. ttd.

Muhammad Alim Achmad Sodiki ttd. -Yeah. "Harjono Maria Farida Indrati ttd". -Yeah. Maruarar Siahaan M. Akil Mochtar

PANITERA REPLACEMENT,

ttd.

Makhfud

orm a pidana/delik act, inciting people to perform

violence against the general ruler, or not following the Invite-

Invite or command of the office;

That of the applicant's postul that states that a quo is

very flexible and very dependent of the ruler's taste is related to

the application of the norm. The penal elements contained in section a quo

as described above are elements that are in their nature

universal, meaning that such elements are prevalent in a country that is

the supremacy of the law;

That despite the provisions of Article 160 of the Penal Code give privilege that

is overstated to protect the interests of government power in the era

colonial, but the Indonesian state adhering to the democratic system is not

gives privilege, regardless of whether or not the a quo. Here

the importance of understanding the norms of the norm of an Act to

harmonized with Indonesian legal tastes as a legal state that

democratic and a democratic state based on the law. Thus,

The court does not agree with the Applicant Daniel Dhakidae and J.E.

Sahetapy who declared the soul in Article 160 of the Criminal Code

is to perpetuate the colonial power while cutting rights

The people. According to the Court, even though the a quo of a colonial legacy is of colonial origin

the Netherlands, however its universal substance, prohibiting people

inciting to commit felon, still remains in compliance with

needs. Current Indonesian law. Nevertheless, in its application,

a section of the quo must be interpreted as a material delik and not as delik

formyl. Thus, the applicant ' s postul that states a quo lentur,

subjective, and depends on the ruler's taste is not appropriate according to

the law;

[3.14.2] That according to the applicant, Article 160 of the Penal Code is impacting

the values of democracy and human rights by derided freedom

union, assembly, and issuing opinions. According to the Court, in

the democratic state, all citizens have the right to union,

assemble, and issue a good opinion with oral or written. In

this must be differentiated between the exercise of the right to issue an opinion

72

with oral or written criticism to the government and

inciting actions. Addressing the criticism to the government orally

or even the writing or even protests is not prohibited under the provisions of the article

a quo as it is part of the rights of every citizen and hence

gets Legal protection. Mandatory public opinion submission

respects the rights and liberties of others, is mandatory subject to the regulations

applicable laws, as well as compulsory respect, safeguarding

security and public order.

[3.14.3] That according to the applicant, the provisions of Article 160 of the Criminal Code impede

any person to advance itself in champing its right

the collective to build society, nation and country, so

contrary to Section 28C paragraph (2) of the 1945 Constitution that reads, " Any

people are entitled to to advance himself in champing his right to

the collective to build up society, nation and country ". According to

The court, the constitutional right of the applicant is not impeded by the provisions of Article

160 of the Criminal Code because of article a quo only in relation to the ban of inciting

to commit violence to the general ruler, inciting to

committing felon, inciting to violate the Act, or

rejects the command of the office provided by the Act, whereas

The applicant remains free to advance itself in fighting for his right

collective to build up society, nation, and country along

not performed, one by means in

Article 160 of the Criminal Code;

[3.14.4] That the length of the applicant stating the application of the Article

160 of the Criminal Code has restricted the petitioner's motion as an activist and that it is the subject of the applicant's chamber.

politicians

in issuing opinions and criticizing government policies that are not

siding with the people and against the applicant either to be proven or

not proven, is the murder of the character against the petitioner.