Constitutional Court Decision on Articles Relating to Defamation and False News

On March 21, 2024, the Constitutional Court (in Indonesian, Mahkamah Konstitusi or “MK”) rendered its Decision No. 78/PUU-XXI/2023 (the “Decision”) in relation to the judicial review on Articles 14 and 15 of Law No. 1 of 1946 dated February 26, 1946, on Criminal Law Code (“Law 1/1946”), Article 310(1) of the Indonesian Criminal Code (the “ICC”), and Articles 27(3) and 45(3) of Law No. 11 of 2008 dated April 21, 2008 on Electronic Information and Transactions as amended by Law No. 19 of 2016 dated November 25, 2016 (the “EIT Law”) (collectively, the “Reviewed Articles”).

The judicial review was petitioned by Haris Azhar, Fatiah Maulidiyanty, Yayasan Lembaga Bantuan Hukum Indonesia, and Aliansi Jurnalis Independen (collectively, the “Petitioners”). The Petitioners argued that the Reviewed Articles, which mainly deal with defamation and false news towards an individual, are contrary to the principles of a democratic state. The Petitioners argued that the Reviewed Articles had been utilized to silence, restrict, and criminalize an individual’s criticism, opinion, and beliefs in relation to government policies, the advancement of human rights, as well as the eradication of corruption, collusion, and nepotism. Also, the Reviewed Articles had been commonly categorized as catchall articles (in Indonesian, pasal karet) that did not have any clear measurement in its interpretation and may lead to legal uncertainty.

Further, the Petitioners argued that the Reviewed Articles were contrary to Articles 1(2), 27(3), 28, 28C(2), 28D(1), 28E(2), 28E(3), 28F, 28G(1), 28I(1), 28I(2), 28I(4), 28I(5), 28J(1), 28J(2), and Article I of the Transitional Provisions of the 1945 Constitution of the Republic of Indonesia (collectively, the “Constitution”).

The following table highlights the substance of the Reviewed Articles and the contents of the Decision:

The issuance of the Decision to some extent may be a fresh air or advancement within the Indonesian democracy, where it provides further protection towards an individual’s rights that are ensured in the Constitution. The nullification of Articles 14 and 15 of Law 1/1946 and the interpretation made to Article 310(1) of the ICC may reduce any attempt to silence, restrict, and criminalize an individual’s criticism, opinion, and beliefs.

AKSET

 

Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), M. Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com), or Justin Amadeus (jamadeus@aksetlaw.com) for further information.

 

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