Court dismisses petition on presidential insult, finds petitioners lack legal standing

The petitioners had feared that the insertion of the once repealed provisions in the new penal code could be used to criminalize critics.


Activists take part in a protest after the House of Representatives approved a new criminal code that will ban sex outside marriage, cohabitation between unmarried couples, insulting the president and expressing views counter to the national ideology, outside the legislative building in Jakarta on Dec. 6, 2022. (Reuters/Willy Kurniawan)

March 1, 2023

JAKARTA – The Constitutional Court dismissed on Tuesday a request to revoke controversial provisions in the new penal code that make insulting the government and a sitting president a crime, saying that the petition was premature and petitioners lacked standing to pursue the case.

The nine-member bench said the provisions in question had not been in effect when two lecturers, a student and a content creator filed their motion in January, days after President Joko “Jokowi” Widodo signed the revised Criminal Code, which was passed by the House of Representatives in December 2022. The new code stipulates that it will take effect three years after its Jan. 2 enactment.

“The petitioners had no legal standing. Even if the petitioners had legal standing, their petition was premature,” chief justice Anwar Usman read out the decision on Tuesday. “Therefore, the court decides not to process the case any longer.”

The petitioners requested the court to annul Articles 218 and 219, which stipulate a punishment of up to three years for insulting a sitting president and up to four years if the offense is committed using a technological device. They also sought the annulment of Articles 240 and 241, which criminalize insulting the government, the House, the Regional Representatives Council (DPD), the Supreme Court and the Constitutional Court, and carry a punishment of one and a half years in prison and up to three years if committed using a technological device.

The petitioners feared that the insertion of the once repealed provisions in the new penal code could be used to criminalize critics.

Similar provisions in the old criminal code were revoked by the Constitutional Court in 2006 and 2007, respectively, on the grounds that they undermined freedom of expression and were subjected to multiple interpretations at the expense of legal certainty.

But policymakers reintroduced them in the new penal code, insisting that the current provisions were different, as only the offended party, in this case, the president, could initiate legal proceedings by filing a report with the police.

The new Criminal Code has been widely criticized by activists and legal experts for restricting civil rights and individual liberties since its deliberation in House Commission III overseeing legal affairs, despite the noble intentions of the drafters to decolonize the law. Besides the lèse-majesté provisions, other provisions widely seen as draconian are those that outlaw sex outside marriage and cohabitation, criminalize unlicensed public protests and ban the spreading of Marxism-Leninism and other non-Pancasila ideologies.

Term limit on presidency

Also on Tuesday, the Constitutional Court rejected a review motion filed by a contract teacher who sought to revoke the two-term limit for the president, saying the petition was moot.

The teacher filed his case in mid-December 2022, when a push for an election delay by some politicians, which will automatically keep President Jokowi in power beyond 2024, stirred controversy. This idea was welcomed by a group of Jokowi’s supporters, who called for the Constitution to be amended to allow presidents to stay in office for three consecutive terms instead of two, paving the way for Jokowi to run again in 2024.

Two justices, Anwar, a two-time appointee from the Supreme Court, and Daniel Yusmic Foekh, a presidential appointee, filed a joint dissenting opinion on Tuesday, saying that the petition lacked legal standing and therefore the court should dismiss the petition. (ipa)

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