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CONSTITUTIONALE Volume 2 Issue 1, January-June 2021: PP: 27 - 38 Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia

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CONSTITUTIONALE Volume 2 Issue 1, January-June 2021: PP: 27 - 38 Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia CONSTITUTIONALE Volume 2 Issue 1, January-June 2021: PP: 27 - 38 Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia. http://jurnal.fh.unila.ac.id/index.php/constitutionale P-ISSN: 2723-2492 E-ISSN: 2745-9322 Comparasion Of Insult Regulation Towards President/Vice President In The Decree of The Constitutional Court Robinsius Asido Putra Nainggolan [email protected] Kejaksaan Negeri Way Kanan, Indonesia Submitted: 8 January 2021; Reviewed: 23 February 2021; Accepted: 1 March 2021. Article’s Information Abstract Keywords: Formulation; President; Vice- The reform of criminal law in President; Insult. Indonesia, which has become one of the discourses, is the Article DOI: regarding insults to the President and https://doi.org/10.25041/constitutionale.v2i1.2203 Vice President in the 2019 RUUKUHP. The government re- included several articles of insulting the president in the Draft Criminal Code formulation, which the Constitutional Court deleted through Decision Number: 013.022/PUU IV/2006. So the problem in this research is how the policy formulation of offense against the President and Vice President is following the formulation of the RUUKUHP and how the comparison of articles on insulting the President and Vice President in the formulation of the Draft Criminal Code with the Constitutional Court Judge Decision No: 013.022/PUU IV/2006. The research method used is juridical normative based on secondary data through library research data collection and data analysis. The discussion results show that the policy for the formulation of offense Constitutionale is a journal published by Faculty of Law, Universitas Lampung, under a Creative Commons Attribution-ShareAlike 4.0 International License. Comparasion Of Insult… Robinsius Asido Putra Nainggolan against the President/Vice President following the formulation of the RUUKUHP is an effort to provide legal protection to the President/Vice President as a symbol in state life. Comparing articles regarding insults to the President and Vice President in the formulation of the RUUKUHP with the Constitutional Court Decision No: 013.022/PUUIV/2006 have both similarities and differences. A. Introduction Efforts to reform the law are continuously carried out in Indonesia to aim that the values and norms of the positive law that apply are under the Indonesian people's characteristics and personality. The law can optimally function as a means of discipline in people's lives.1 The law can carry out its role as an instrument that provides legal certainty and justice.2 The renewal of the law's substance is carried out with the intention that the Indonesian nation has a legal system that reflects the values of national life that have high cultural or socio-cultural roots as a legacy from the nation's ancestors, not an inheritance from colonialists or colonialists.3 The process of legal reform in a criminal justice system is closely related to the sentence imposed by the judge against the perpetrator of a criminal offense, and it is the judge who sees the facts in the field directly. Thus the Panel of Judges can accurately consider what kind of crime is imposed on the perpetrator of the criminal act.4 Law does not mean rigid in the life of a developing society. Thus, law enforcers must have high professionalism in unifying regulations with the conditions and development of society, thereby creating correct decisions and fulfilling aspects of legal certainty and usefulness.5 One of the discourses that have developed along with the reform of criminal law in Indonesia is the Article regarding insults to the President/Vice President in the 2019 Criminal Code Draft or Rancangan Undang-Undang Kitab Undang-Undang Hukum Pidana (RUU- KUHP). The government has again included several articles insulting the president in the formulation of the Draft Criminal Code, which has been canceled by the Constitutional Court 1 Putera Astomo, “Pembentukan Undang-Undang Dalam Rangka Pembaharuan Hukum Nasional Di Era Demokrasi,” Jurnal Konstitusi, vol. 11, May 20, 2016, https://doi.org/10.31078/JK%X. 2Muladi, Demokrasi, Hak Asasi Manusia dan Reformasi Hukum di Indonesia, Jakarta: The Habibie Center, 2002, pg. 34. 3 Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, Bandung: Citra Aditya Bhakti, 1996, pg.30. 4 Lidya Suryani Widyati, “TINDAK PIDANA PENGHINAAN TERHADAP PRESIDEN ATAU WAKIL PRESIDEN: PERLUKAH DIATUR KEMBALI DALAM KUHP? (DEFAMATION AGAINST THE PRESIDENT OR VICE PRESIDENT: SHOULD IT BE REGULATED IN THE CRIMINAL CODE?),” Negara Hukum: Membangun Hukum Untuk Keadilan Dan Kesejahteraan 8, no. 2 (November 1, 2017): 215–34, https://doi.org/10.22212/jnh.v8i2.1067. 5 Sudarto, Pembaharuan Hukum Pidana di Indonesia. Jakarta: Badan Pembinaan Hukum Nasional Departemen Kehakiman, 1986, pg. 27. 28 Constitutionale P-ISSN 2723-2492 Volume 2 Issue 1, January-June 2021 E-ISSN 2745-9322 (MK) with Decision No: 013.022/PUU IV/2006.6 Several articles in the Criminal Code related to articles regarding insults to the president and the government revoked by the Constitutional Court (MK) through Decision No: 013.022/PUU IV/2006 are Articles 134, 136, and 137 of the Criminal Code. Many academics then considered the offense of insult as an offense with a comprehensive explanation. Therefore it is not surprising that in some regimes in effect in Indonesia, these articles are widely used to ensnare those who often criticize the government. These articles are then used by government officials, especially the president, to punish people who commit this “insult”. According to the government, in the academic draft of the Draft Criminal Code, the criminal acts contained in Chapter 11 of the Criminal Code are still relevant. They can be maintained because they are considered following the Indonesian nation's spirit, which is kinship in nature, where if the head of state is attacked or insulted, the public cannot accept it. In the latest draft, the Article regarding attacks on dignity has been regulated, namely book II on the criminal offense against the dignity of the president and/or vice president. In general, a criminal act is a criminal act committed deliberately attacking the honor or reputation of the president and/or vice president because insult is essentially a disgraceful act seen from the moral, religious, social, and human rights aspects. Because the current function of criminal law should be more focused on protecting individual interests and human rights. The development of law as it is today should be the product of our criminal law to be better and more harmonious. However, this has been injured by following the problematic Article again, the Article on crimes of attacking the dignity of the president and/or vice president, whose contents are very vague or unclear in terms of liberalism. The government's consideration of re-inserting articles regarding insults to the president in the Draft Criminal Code's formulation is to prioritize the principle of equality before the law. This principle is deemed to be implemented for the honor of the president/vice president, considering that in the Criminal Code, there are articles that threaten the perpetrator of the insult committed against the heads of friendly countries/officials of friendly countries visiting Indonesia. The Draft Criminal Code does not emphasize the personal figure of a president/vice president who was actively in office when the insult was committed, but the Presidential institution's protection, which the president heads.7 The Article on insulting the president in the Draft Criminal Code's formulation adopted from Article 134 of the Criminal Code, which the Constitutional Court canceled. At that time, Article 134 was independent (only one Article and one paragraph without exception). Meanwhile, in the formulation of the Draft Criminal Code, the government wants an exception to the Article on insulting the president. This exception is an insult if it is in the community's interests or is aimed at self- defense so that the crime is meant in paragraph 1. Several articles insulting the president re-included in the Draft Criminal Code are Article 218, Article 219, and Article 220. The legal issue in the research is the inclusion of articles regarding insulting the president in the formulation of the Draft Criminal Code is considered less relevant to the principles of democracy in force in Indonesia. The existence of these articles is considered to be contrary to the spirit of reform. It restricts freedom of expression, especially freedom of opinion as a citizen's right is also regulated in statutory regulations.8 However, in practice, there has been an abuse of the application of articles concerning the criminal act of insulting or articles regarding the criminal act of insulting the president or vice 6 Syukri Asy et al., “Model Dan Implementasi Putusan Mahkamah Konstitusi Dalam Pengujian Undang-Undang (Studi Putusan Tahun 2003-2012),” Jurnal Konstitusi, vol. 10, May 20, 2016, https://doi.org/10.31078/JK%X. 7https://www.hukumonline.com/berita/baca/lt5a7971580ae48/alasan-pemerintah-adopsi-pasal-penghinaan- presiden-dalam-rkuhp/ accessed on 11 February 2020. 8https://katadata.co.id/berita/2019/09/20/pidana-hina-presiden-pemerintah-dpr-dianggap-melawan-konstitusi. Accessed on 11 February 2020. 29 Comparasion Of Insult… Robinsius Asido Putra Nainggolan president, namely to protect the interests of the government represented by the president and/or vice president. The concept of protecting the dignity of the president or vice president in these articles is also interpreted to protect government policies from criticism. Therefore, anyone who criticizes and demonstrates against the government will be considered as insulting the president and at the same time being considered the government. Based on the background and explanation above, the main problem is how the policy for the formulation of offense against the president and/or vice president following the formulation of the Draft Criminal Code and how does the comparison of articles regarding insulting the president/vice president in the formulation of the Draft Criminal Code with the Constitutional Court Decision No.013.022/PUU IV/2006.
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