Constitutional Court Abolishes Article on Spreading False News: Is the Threat to Freedom of Expression Resolved?

Jakarta, Legal Literacy - The Constitutional Court (MK) has repealed the article on spreading false news that incites riots in Law Number 1 of 1946 concerning Criminal Law Regulations. The reason for this annulment is that the article is considered ambiguous and potentially misused.

The article has the potential to ensnare people who want to provide input or criticism to the authorities. This can endanger freedom of expression because the assessment of criticism and input can be subjective and potentially misused.

Unclear Definition of "Rioting" Threatens Freedom of Expression

Constitutional Justice Enny Nurbaningsih, in the Constitutional Court's decision on March 21, 2024, highlighted the danger of Articles 14 and 15 of Law 1/1946, which define "rioting" vaguely. This ambiguity has the potential to ensnare individuals or communities who criticize government policies, even if the criticism is based on strong facts, evidence, and arguments.

Without a clear definition, criticism of the government can be misinterpreted as "rioting" and result in the silencing of critical voices and the suppression of freedom of expression. This is contrary to the 1945 Constitution which guarantees the public's right to oversee and criticize government policies.

This Constitutional Court decision is an important step in protecting the constitutional rights of the public to express opinions and criticize the government. In the future, a revision of Law 1/1946 is needed to define "rioting" more clearly and prevent the misuse of the article to silence critical voices.

The Element of "Rioting" in Article 14 of Law 1/1946 is Considered Obsolete and Potentially Silences Criticism

Constitutional Justice Enny Nurbaningsih, in her consideration at the Constitutional Court hearing on March 21, 2024, stated that the element of "disorder or rioting" in Article 14 of Law 1/1946 is no longer relevant to the development of the times and information technology.

Enny explained that the public currently has broad and easy access to information through various media, especially social media. This makes opinions and criticisms of government policies in the public sphere a part of the dynamics of democracy and the realization of public participation.

Therefore, criticism of the government, even if its truth is still in doubt, cannot be directly considered as "rioting" that can be criminalized. Public discourse and debates arising from such criticism should be seen as part of a healthy democratic process.

Enny emphasized that Article 14 of Law 1/1946 has the potential to be misused to silence criticism and opinions that differ from the government. This is contrary to the constitutional right of citizens to participate in democracy.

Constitutional Court Grants Part of Haris Azhar and Fatia's Lawsuit Regarding Elastic Clauses

The Constitutional Court (MK) granted part of the lawsuit filed by Haris Azhar, Fatia Maulidiyanti, YLBHI, and AJI regarding the elastic clauses that are often used to ensnare activists and journalists. These articles are Article 14 and 15 of Law 1/1946, Article 310 Paragraph (1) of the Criminal Code, and Article 27 Paragraph (3) and Article 45 Paragraph (3) of the ITE Law.

Haris Azhar and Fatia had previously been charged with these articles based on a report by Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan. However, the panel of the East Jakarta District Court acquitted both of all charges.

In a hearing led by Chief Justice of the Constitutional Court Suhartoyo, the Constitutional Court granted part of their request, namely that related to Criminal Law Regulations and the Criminal Code. Meanwhile, the judicial review of the ITE Law was not accepted because it lost its object of case considering that the law had been revised and the new regulation had been stipulated on January 2, 2024.

This Constitutional Court decision is a step forward in protecting human rights and freedom of expression in Indonesia. The elastic clauses that are often used to ensnare activists and journalists have long been criticized by various parties because they are considered to threaten democracy.

The Ambiguity of Articles 14 and 15 of Law 1/1946 Has the Potential to be Misused

Constitutional Justice Arsul Sani, in his consideration at the Constitutional Court hearing on March 21, 2024, highlighted the ambiguity in the norms of Articles 14 and 15 of Law 1/1946. The unclear definition of "false news or notification", "disorder or rioting", and "uncertain or excessive news" has the potential to be misused to ensnare individuals who convey criticism of the government.

Arsul explained that the difficulty in finding measures and parameters of "truth" about information can open opportunities for subjective interpretation by law enforcement. It is feared that this could become a tool to silence critical voices and restrict freedom of expression of the public.

The ambiguity of the norms in the article also has the potential to create doubt and fear for the public to express their opinions. This can hinder public participation in the process of democracy and national development.

Therefore, the Constitutional Court needs to carry out contextual and evolutionary interpretation of these norms so that they do not conflict with the constitution and the development of the times.

The Threat of Articles 14 and 15 of Law 1/1946 to the Right to Creativity and Democracy

Constitutional Justice Arsul Sani, in his consideration at the Constitutional Court hearing on March 21, 2024, affirmed that Articles 14 and 15 of Law 1/1946 have the potential to limit the right of citizens to be creative in thinking and finding the truth. The unclear definition and absolute nature of the article can hinder public participation in democracy.

Arsul emphasized that democracy requires opinions and information from citizens to produce the right decisions. The state should not silence the voices of the people under the pretext of upholding the truth.

The state, according to Arsul, must provide space for its citizens to express themselves freely. This is in line with the principles of democracy that uphold human rights.

The Constitutional Court also assessed that Articles 14 and 15 of Law 1/1946 are elastic clauses that do not have clear benchmarks. In this digital era, people easily access information without knowing the truth. This makes the article increasingly irrelevant and potentially misused.

The Ambiguity of the Element of "Rioting" in Article 14 of Law 1/1946 Has the Potential to be Misused

The Constitutional Court (MK), in its consideration, assessed that the element of "disorder" or "rioting" in Article 14 of Law 1/1946 contains unclear measures and parameters that become the limits of danger. The use of the word "rioting" has the potential to cause multiple interpretations because between commotion, riots, and disturbances have different gradations, as well as the consequences caused.

This ambiguity is feared to open opportunities for subjective interpretation by law enforcement, potentially being misused to ensnare individuals who express criticism of the government. This could silence critical voices and restrict the public's freedom of expression.

In addition to removing the provisions of Articles 14 and 15 of Law 1/1946, the Constitutional Court also amended the provisions of Article 310 of Law 1/2023 concerning the Criminal Code by adding the phrase "orally".

This change is intended to:

• Clarify the definition of defamation.
• Limit the scope of the article so that it is not misused to ensnare individuals who express criticism orally.

This Constitutional Court decision is a step forward in:

• Protecting human rights and freedom of expression in Indonesia.
• Preventing the misuse of elastic clauses to silence critical voices.
• Realizing a healthy and participatory democracy.