Murals, Democracy, and Insulting the President
Articles with multiple potential interpretations on presidential defamation should not be brought back into law.
Dignity consists not in possessing honors, but in the consciousness that we deserve them – Aristotle
Aristotle in the above adage implies that honor is bestowed to those who deserve it. His view is closely relevant to discourse on a proposed ban on murals, raised by Faldo Maldini, a special staff member of the State Secretariat, and the statutory content on presidential defamation that has reemerged in the criminal code bill (RUU KUHP).
The criminal code bill has been included in the 2021 national legislation program and lawmakers are seeking its ratification this year.
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Regarding the controversy over provisions on insulting a sitting president, Coordinating Political, Legal and Security Affairs Minister Moh Mahfud MD, on his Twitter account, said President Joko “Jokowi” Widodo was fully relying on the House of Representatives to determine the statutes related to presidential defamation, even though the criminal code bill is within the executive’s domain.
Various circles, such as the Indonesian Legal Aid Foundation (LBHI) and the Institute for Criminal Justice Reform (ICJR), have rejected the proposed statutes on presidential insults, saying that they cripple freedom of expression and curtail democracy. However, the criminal code bill’s proponents are of the view that the president, as a symbol of the state’s honor and dignity, must be respected and protected.
Mural controversy
This piece is looking to delve into the issue of democracy and the honor of the state. Statutory content concerning presidential insults aside, controversies over murals in Indonesia have become a perennial issue.
Faldo Maldini said on Twitter that painting a mural required a permit. Otherwise, it would be considered against the law. However, a problem may arise given that street mural regulations are general the purview of regional administrations.
A mural painting by graffiti artist, Eme Freethinker, featuring figures similar to US President Donald Trump and Chinese prime minister Xi Jinping wearing face coverings in Berlin April 28, 2020
For example, Article 21 of Jakarta Regional Regulation No. 8/2007 prohibits street graffiti, paintings and other forms of art in public facilities. With this regulation, the enforcement is left to regional administrations.
Why is the central government irked by a recent mural and its substance? Can this art be taken as an expression of contempt for the President in particular? Should painting a mural make someone liable for legal punishment?
The proposed libel offense for insulting the sitting president or vice president has caused a public uproar, given that a similar unpopular statue was once in Articles 134 and 137 of the Criminal Code.
Why is the central government irked by a recent mural and its substance?
Both articles were revoked through a Constitutional Court decree on Dec. 4, 2006. The court ruled that the articles could trigger legal uncertainty (rechtsonzekerheid) because of their vulnerability to multiple interpretations, whether a protest or a statement of opinion should be taken as constructive criticism or an insult.
The court emphasized that Indonesia was a democratic state based on the rule of law in the form of a republic and honored people\'s freedoms and upheld human rights.
Therefore, the court ruled that Article 134, Article 136 and Article 137 were void because they negated the principles of equality before the law, undermined freedom of expression and opinion and limited the freedom to access information and to have legal assurance.
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Through the decree, the court highlighted that in order to guarantee democracy and human rights, articles on presidential insults that were prone to multiple interpretations had to be revoked.
Because of this decision, the Criminal Code in the future must not include such content. This is based on the principle that the law cannot carry unconstitutional rulings.
This principle is emphasized in Article 10 paragraph 1 of Law No. 12/2011 concerning legislation, which stipulates that statutes must be formulated in the spirit of the Constitutional Court’s rulings. The criminal code bill must be a manifestation of the court’s ruling, especially with regard to criminal law.
Article 353 of the criminal code bill presents the same statutes on presidential insults with different wordings. But they are not only about the president. They also include other state institutions.
Motorcycle riders pass a mural of the faces of the former President of the Republic of Indonesia on Jalan H Ba\'an, Poris Plawad Indah, Tangerang City, Banten, Sunday (16/5/2021).
Article 353, paragraph 1 reads “… in public orally or literally, insulting public power or state institutions”. Paragraph 2 mentions that the person or people who deliver the insults are liable if they cause commotion or unrest.
Compared to the cancelled Articles 134 and 137, Article 353 of the criminal code bill would impose a far more lenient punishment: one year and six months in prison or three years in prison if community unrest occurs as a result of the insult.
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Article 134 of the Criminal Code set a punishment of six years in prison for people who insulted the president. Another difference is that the newly drafted article requires public unrest or commotion to take place for the higher tier of punishment to apply.
The last and most distinct difference is that the proposed article in the criminal code bill requires the offended party or someone on their behalf to press charges, while Articles 134 and 137 of the Criminal Code were ordinary offenses, which meant they would be taken up by the criminal system without the need for the offended party to file a petition. This difference means Article 353 of the criminal code bill does not completely contravene the Constitution.
Urgency of the bill
A bit question is whether Indonesia needs an article on presidential insults. The legal tradition that belongs to the UK was the first to criminalize defamation under a concept called Scandalum Magnatum.
The 1275 Statute of Westminster of 1275 stated, “From henceforth, none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander, may grow between the King and his People, or the Great Men of the Realm.”
This ordinance later became the legal basis for criminal libel. Scandalum Magnatum was formulated to restore honor of defamation victims at that time. Defamation was thought to have consequences such as war, conflict and so on (Anggara, 2012, ICJR). Therefore, the law and its punishment aimed to prevent any potential negative impact on the public.
Defamation laws are used in some countries to protect the dignity of the head of state (Ruth Walden, 2000).
Screenshot on social media twitter regarding the deleted mural with the hashtag #Jokowi404NotFound
One court verdict that substantially influenced defamation law in Europe was the European Court of Human Rights’ ruling in 2010 that the conviction of Jose Guttierez, a journalist who wrote about King Hasan of Morocco, had violated the freedom of the press (Patti McCracken, 2012).
Not only did the European Court of Human Rights decide in favor of freedom of the press over the defamation law, but the ruling had an impact on defamation laws in European countries. In 2004, France abolished a clause on slander against visiting heads of state, saying it contravened press freedom.
SARA-related insults
Based on the legal comparison above, articles with multiple potential interpretations on presidential defamation should not be brought back into law. However, based on the Scandalum Magnatum concept, acts of defamation that have an impact on public order should be regulated, especially in the current era of social media.
Insults related to ethnicity, religion, race and social groups (SARA) that could lead to conflicts among citizens need to be prevented through criminalization. Therefore, any defamation article should take into account such causes and consequences.
The president would be given the opportunity to find a solution to the alleged slander and would not necessarily have to resort to legal means.
In addition, the article must also require an offended party to file a complaint, as stipulated in Article 353 Paragraph 3 of the criminal code bill. The requirement to file a petition would give the victim the right to assess the damage and report the damaging act to the authorities (E Utrecht, 1987).
That way, the president would be given the opportunity to find a solution to the alleged slander and would not necessarily have to resort to legal means.
Muhammad Fatahillah Akbar
As in the case of murals, the issue could be settled outside of court. This type of slander regulation will foster democracy by providing the necessary boundaries in protecting the honor of the president and the state.
This is in line with the siracusa principles, which hold that restraining human rights may be necessary to protect other human rights, provided laws that do so are clear and not susceptible to multiple interpretations.
Muhammad Fatahillah Akbar, Lecturer in the Department of Criminal Law at the Gadjah Mada University School of Law.
This article was translated by Musthofid.
