Human rights activists have condemned the "insult against the president" regulations, claiming they have no place in a democratic country.
LAST Monday, student activist Wayan Gendo Suardana stood trial on charges of insulting the president. At one point during the hearing, Suardana stood from his seat and rushed out of the courtroom to meet with colleagues who had gathered outside the Denpasar District Court. Judicial panel chairperson, I Made Sudia seemed momentarily stunned, but then composed himself before bellowing: "Guards, secure the defendant!" whereupon the guards escorted Suardana back to the room to continue the hearing.
Evidently, Suardana, 29, was upset with the court's decision to deny his request to have President Susilo Bambang Yudhoyono summoned to give testimony during the trial. In fact, the court initially granted Suardana's request to have the president summoned. However, this decision was overruled by the High Court. Suardana was convinced that Yudhoyono's testimony would help exonerate him from the charges of insulting the president.
The actual "insulting" incident took place during a demonstration held in front of the Bali Regional House of Representatives in December 2004, protesting the hike in petroleum prices. During the demonstration, Suardana displayed a poster of President Yudhoyono resembling Dracula. Demonstrators subsequently burnt the poster. Suardana was immediately arrested and charged with insulting the president under Articles 134 and 136 of the Criminal Code.
In response to the prosecutor's indictment, Suardana asked his attorney, Agus Samijaya, to request the court to summons the president to give testimony during the trial. Samijaya argued that the president would clarify whether he was personally insulted by Suardana's actions. "We need to determine whether the president himself was insulted," Samijaya said. Surprisingly, the presiding district court judicial panel granted Suardana's request.
Dissatisfied with the ruling, Prosecutor Putu Suparta Jaya filed an appeal against the district court decision with the High Court. High Court Justice I Made Lingga promptly overruled the district court ruling. Lingga ruled that the president should not be disturbed from performing his duties at the Presidential Palace to give testimony in a trial that did not directly concern him.
However, the issue has triggered a debate as to whether the president should have been summoned. According to criminal law expert, Andi Hamzah, the president should not be summoned to testify as a "victim witness." According to Hamzah, "the victim of the alleged insult is not Susilo Bambang Yudhoyono, but the president." Hamzah claims that the prosecutor already represents the government in this instance. Separately, Udayana University Law Faculty lecturer, Gde Swardana, corroborated Hamzah's view, claiming that it would be unreasonable to summons the president to every trial involving "alleged insults against the president." "The president is very busy," he explained.
This is not the first time that a defendant has asked that the president be summoned to give testimony at a trial involving alleged "insult against the president" charges. "But, these requests are always rejected," noted Gatot, attorney to student activist Monang Johannes Tambunan, who was sentenced to six months in prison on charges of insulting the president by the Central Jakarta District Court, last Monday.
Nevertheless, Suardana has not given up hope. Suardana's attorney, Samijaya also filed an objection to the prosecutor's use of Articles 134 and 136 of the Criminal Code. Samijaya criticized the prosecutor's decision to use these provisions, claiming that they have been traditionally used against advocates for democracy. "These regulations are a legacy of the Dutch colonial government," said Samijaya.
Other legal observers have supported Samijaya's view, criticizing prosecutors for their frequent use of these regulations and provisions prohibiting the disseminating of animosity against the government.
In fact, founding father Sukarno was also charged under these provisions during his fight for independence from Dutch rule. In 1930, the Dutch colonial government tried Sukarno for spreading "animosity against the Dutch government." Sukarno was convicted of the charges and sentenced to four years in prison. Mohammad Hatta was also charged with violating this legislation while in Holland in 1927, but was exonerated of all charges.
Former director-general of laws and regulations at the Department of Justice & Human Rights, Romli Atmasasmita, also said that using these provisions is unnecessary. "In democratic nations, such legislation does not exist," he said. Atmasasmita suggests that defendants accused of these charges could be just as easily charged under the defamation provisions within the Criminal Code. "I do not agree with the inclusion of these provisions in the revised Criminal Code," he said.
However, other legal observers support the provisions. Andi Hamzah expressed support for the provisions, claiming that every country has legislation that demands respect for the head of state. According to Hamzah, there should be no exception in a democratic country like Indonesia.
Abdul Manan (Jakarta), Rofiqi Hasan (Denpasar)
TEMPO, MAY 23, 2005-037/P. 42 Heading Law