Latest Posts

THE INDONESIAN CONSTITUTIONAL COURT AND DEMOCRATIZATION OF STATE POWER

By 5:58:00 PM , ,


The controversy of several articles in the 2018 Legislative Bodies (MD3) Law that were regulated the House of Representative (DPR) members legal immunity from public criticism and criminal investigation has ended. Not long after the enactment of the MD3 Law, a number of legal academics and civil society organizations lodged applications to review the constitutionality of several provisions contained within.
Less than six months after the applications were lodged, on Thursday (28/06/2018), the Indonesian Constitutional Court decided to grant the applications partially. The Constitutional Court annulled several provisions in the MD3 Law, particularly Article 73 on the forced summoning of citizens, Article 122 on the criminalization of critics to the DPR, and Article 245 on the DPR immunity.
This Constitutional Court's decision is a momentum to restore citizen freedom of speech and expression to supervise and criticize the state power (the DPR members), maintain the quality of democracy, and resist the abuse of power by the state power. Demands for freedom of speech and expression, however, were displayed more than anything else when Indonesia moved from an authoritarian regime to democracy.
Indonesian have won their long struggle for democracy, the constitutional reform started in 1998 with a regime change from an authoritarian state to a democratic state and created main fundamental principles, such as the principle of separation of powers and the protection of the fundamental rights guaranteed by the constitution. Indonesia is widely considered a functioning democracy not only in theory but also in reality.
However, through the enactment of some controversial articles in the MD3 Law was considered back in the New Order period and makes DPR seem a superpower institution that has violated the principles of democracy. Whereas freedom of speech and expression are necessary to a democratic society in searching for information, participation in political decision-making, and citizens also can supervise and criticize the state institutions activities. Because the idea of constitutionalism in modern democracies is the citizens' constitutional rights should be protected to the greatest possible extent while the governmental restriction of the rights should be limited as much as possible.
Currently, guarantee for freedom of speech and expression stipulated in Article 28 and Article 28E (3) of the 1945 Constitution and these provisions have the significant impact on the development of constitutional democracy in Indonesia today.
There are several reasons why these freedoms are so important that they should be protected, first, freedom of speech and expression are an individual's ideas and opinions to the state power as a way of fulfilling his participation in political decision-making. Second, freedom of speech and expression are usually restricted to correct or prevent the harm from the contempt against the state power, and the state institutions effort in this regard is justified and necessary.
Nonetheless, the mechanism to deal with the speech and expression related to the criticism against the state power including the DPR members that they need to be objective to whatever criticism people throw the way. Criticism is a natural part of the state power, so they should not use their power to criminalize public criticism.
In this context, the Constitutional Court has contributed very important to institutionalizing freedom of expression as a permanent fixture of Indonesian democracy. In recent years, the Constitutional Courts have annulled many statutes against to the constitution especially freedom of speech and expression related to the criticism against the state power, for example in the lese majeste case (2006), the Court annulled several provisions in the Criminal Code that regulated specific defamations against the President and Vice President.
Another interesting case is hate showing case (2007), the Court annulled several provisions in the Criminal Code that regulated the expression of hostility, hatred or contempt against the Government of Indonesia. Then, as mentioned above, in 2018 the Court revoked several controversial articles in the MD3 Law. Based on the Constitutional Court decisions, so now Indonesian citizens do not have to worry they will not be criminalized when they criticize the state official.

The Constitutional Court took an active attitude for the constitutional guarantee of freedom of speech and expression. Through the decisions, the Constitutional Court has contributed to changing the state power to a transparent and making responsive to public criticism. Other than that, the important role of the Constitutional Courts jurisprudence in protecting freedom of speech and expression merits attention because an independent judiciary is indispensable to making constitutionalism more than an embellishment.

M Lutfi Chakim

You Might Also Like

0 comments