Key Benefits:
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
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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,
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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
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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
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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
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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
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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;
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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 by esian 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
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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 Indon ncarcerate 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
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(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
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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
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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">
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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 i n 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
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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;
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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;
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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, the p>
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 occurrencein 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