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This article is written by Adnan Yazar Zulfikar from the Faculty of Law, Padjadjaran University as part of EngageMedia’s Youth Advocacy and Communications for Internet Freedom project, which aims to expand awareness and engagement with digital rights issues among youth advocates in the Asia-Pacific.
Adnan Yazar Zulfikar is a young lecturer at the Department of Constitutional Law, Faculty of Law, Padjadjaran University and a skilled researcher at the Center for State Policy Studies. He also works as an independent consultant, assisting various national and local institutions in formulating policies and regulations.
In “Pedagogy of the Oppressed”, Brazilian educator and philosopher Paulo Freire wrote about the tendency of the oppressed to behave like the oppressors once they come into power. Perhaps Freire’s perspective lends an explanation for the phenomenon that is the establishment of the new Criminal Code in Indonesia.
It has been nearly a century since Indonesia freed itself from colonisation. In a bid to achieve the Government’s aspirations for a “Golden Indonesia” by 2045, the Government and the Parliament (DPR) have succeeded in coming up with Indonesia’s own national Criminal Code by enacting Law No. 1 of 2023 on the Criminal Code. Under the narrative of decolonisation, in their efforts to remove traces of colonialism from the old Criminal Code –a remnant of the former Dutch Indies – the Government and DPR formulated the new Criminal Code with several provisions which are no less colonial in nature.
Some of the colonial provisions include Articles 218 – 220 on insulting the honour or dignity of the President and/or Vice-President, as well as Articles 240 – 241 outlawing the act of insulting the government or state institutions.
The existence of these clauses is counterproductive to the development ushered in by the internet, which offers an extensive medium for the public, especially the youth, to voice their criticisms (academic or otherwise). Instead of guaranteeing internet freedom, these clauses have made every single corner of the digital sphere unsafe for expressing aspirations or criticisms towards the government, as anyone could be abruptly charged with a criminal offense at any time.
These clauses are in place even though the youth hold important roles in policy-making by shaping the discourse in academic and public spaces to meet their aspirations as custodians of the future, as well as by engaging in litigation and non-litigation advocacy movements. In Indonesia, non-litigation advocacy frequently takes the form of campaigns targeting public officials tasked with policy-making, whereas litigation advocacy is done by petitioning policies through judicial avenues (judicial review).
Defamation and other ‘rubber clauses’
Looking back, there are many case examples of public officials or their sympathisers reporting citizens for their criticism using “defamation” clauses, to the extent that it may even be considered part of the legal culture. The tendency to report people who have expressed their outrage towards the behaviour or performance of public officials can be seen in several instances. For example, a report was filed against Rocky Gerung after he used the words “bajingan tolol” (“idiotic bastard” in Indonesian) towards the President while criticising one of the President’s policies to peddle development projects in the new state capital to foreign investors. Haris and Fatia were charged with defamation after disseminating the results of a nonprofit study on the involvement of military forces in the exploitative business of gold mines in Papua.
Ambiguous “rubber” clauses always lack measurable and objective parameters. However, the common thread among these three cases is that all of them essentially involve criticism or disappointment towards the government. Legal norms containing the threat of criminal charges for individuals “defaming” the government produce a culture of reporting criticism as crimes for the government and a culture of fear towards expressing criticism for the people, creating an unhealthy situation for the state of law and democracy in Indonesia.
Moreover, similar clauses have already been annulled by the Constitutional Court from the old Criminal Code as they were deemed unconstitutional. According to the Constitutional Court, such provisions are no longer relevant to Indonesia’s commitment to become a democratic state under the rule of law.
This development signals the Constitutional Court’s affirmation that such provisions prevent individuals from freely criticising the President and the Vice-President. It is interesting to explore its correlation with the concept of a modern legal state which perceives public posts as fictional or legal constructs, or what Yuval Noah Harari refers to as “imagined realities”, which are impersonal in nature. The President and Vice-President posts ultimately exist because the Indonesian people live under a constitutional system, where the people (the constituent) as the source of legitimacy to power give rise to the organisation of posts and authority (the constituted) to manage common interests (res publica). These posts did not arise nor grow on their own, but are instead constitutional, in the sense that they were created to organise existing power within the people.
To maintain the legal fiction that government posts in a modern legal state, including the President and Vice-President, are impersonal in nature, it should naturally be assumed that defamation clauses outlawing insults on their persons are no longer relevant. Criminal provisions in the new Criminal Code on insulting the dignity of the President as stipulated in Articles 218 – 220, as well as insulting the government or state institutions as stipulated in Articles 240 – 241, are highly absurd because government posts and institutions are objects which possess no honour or dignity to protect.
It is the human individuals behind these posts who possess honour and dignity to protect, as honour and dignity are qualities inherent to humans and not positions. However, the protection of these inherent qualities for individuals occupying public posts does not necessitate special protection compared to ordinary citizens, as indicated by the Constitutional Court ruling. In other words, no special clauses containing criminal provisions on insulting the honour and dignity of the President and Vice-President, as well as government and state institutions, are needed.
If state and government officials feel that their honour and dignity as individuals have been violated, their complaints should be filed in the same manner as that of any ordinary citizen because their honour and dignity are no higher than any other person simply because they have been entrusted with public posts.
In fact, taking into account their standing as public officials who are tasked with implementing and managing the authority entrusted by the public and paid out of the public’s pockets, these public officials should instead feel indebted and open themselves to the public’s opinions and criticisms towards their performance. Creating an open atmosphere towards public criticism would be the democratic and responsible thing for these officials to do. The existence of provisions threatening criminal sanctions for individuals who “defame” public officials is not a good example of a policy which nurtures a democratic atmosphere for public criticism, but rather the opposite.
A call to action for the youth
While the existence of these very clauses poses a threat to freedom of expression and Internet freedom, “express opinions wisely”, “be careful while posting”, and “no need to talk about politics” are not the right choices for the public – particularly for the youth – that want to improve their lives as citizens. There is room for the public, especially youths who are active in the digital sphere, to seize the interpretation of the Criminal Code to become more democratic and adherent to human rights, while simultaneously putting pressure on the establishment through collective action.
Once again, the law is an “imagined reality” resulting from a collective understanding of how things should be regulated under the law. While the formulation of the Criminal Code has been dominated by monarchical and colonial paradigms, giving rise to problematic clauses, after the Criminal Code has been put into effect, there is still room for the public to reinterpret the clauses within the Criminal Code with better interpretations. Solidarity from the youth in campaigning against the problematic clauses in the Criminal Code can particularly put pressure on the establishment.
One constitutional avenue to seize the interpretation of the Criminal Code is by putting it through a constitutional review at the Constitutional Court. Although the new Criminal Code will only take effect in 2026, it is already considered law after it was enacted by the President earlier this year and is eligible for review.
A petition for reviewing a law could be filed to the Constitutional Court by a party who considers their constitutional right violated, be that in reality, when an individual has already been charged with a criminal offense based on its clauses, or potentially when an individual feels under threat or fear in expressing criticism due to the threat of criminal sanction. Naturally, waiting until one of us falls victim to one of the problematic clauses is not an option. For this reason, clauses against criticism in the Criminal Code can be immediately petitioned so that the youth can seize the interpretation for a more democratic Criminal Code.
