The GOVERNMENT has submitted the latest draft of the Draft Criminal Code (RKUHP) to Commission III of the DPR RI on Wednesday (6/7). The draft RKUHP which contains dozens of important issues has invited strong protests from students and experts. This happened because the draft RKUHP to be ratified was still retaining the controversial articles of the Dutch East Indies legal heritage. Namely regarding the article on insulting the President/Vice President and public officials in the government.
Articles of insult to state officials and institutions apply in several countries with the exception of most democracies. Indonesia itself has for more than seven decades inherited similar Dutch colonial articles known as haatzaai articlesen, which were introduced by the Dutch East Indies colonial government since 1914.
Articles of insults or hate speech actually do not stand alone but are also related to external problems. Namely regarding the neutrality of the Netherlands in the midst of the great war in Europe. Kees Van Dijk in his work entitled The Netherlands Indies and the Great War explained that the Dutch needed to control the voice of the press in the Dutch East Indies. The goal is that the press is not too harsh in criticizing the big actors in the first world war, in this case Germany.
Anti-German voices were feared to disrupt Dutch-German relations in Europe. In addition to anti-German voices, the colonial government was also concerned with attacks on government policies and the tendency of nationalist journalists to write articles that were deemed to incite hatred against the colonial government of the Dutch East Indies. This then prompted the enactment of specific legal methods to curb freedom in the colony which was different from the criminal law in the mother country (the Netherlands).
In turn, we witness a series of attempts by the colonial government to use articles haatzaai to suppress not only the Bumi Putera press but also national movement figures. For this reason, a number of legal experts believe that the Indonesian government is moving backwards because it is considered to want to imprison the freedoms that have been fought for and coveted with difficulty.
Reason for balance
In the midst of an onslaught of criticism against the article on insults in the draft RKUHP, it is good to see a review from Ariel Heryanto, professor emeritus of Monash University in an article published Compass. Ariel once said that carrying out the article on insults is not a concrete step to create a balance between freedom of expression and protection of the good name of others.
He said this when he tried to respond to the opinion of the Minister of Law and Human Rights Yasona Laoli in 2019. Ariel is of the view that for the sake of balance, there should be articles that threaten state officials if they attack the honor of the people. Not the other way around. Ariel said that considering that the voting rights of officials were far greater than ordinary or unbalanced people. Considering that the government has all solid instruments such as the Ministry of Communication and Information, the Ministry of Education, the Public Relations Office, and Influencers. (Ariel Heryanto, Compass,26 June 2021).
All the tools owned by the government should make the government feel able to balance the situation and ensure the continuity of the principle of freedom of expression in a democracy. Instead of formulating legal products that seem to nullify the authority and courage of the leaders sitting in government to the point where they need a shield.
Although on the other hand, there are other, more complicated obstacles, especially when freedom of expression is wildly expressed through various channels, including social media which is difficult to monitor. We also cannot deny the reality of the proliferation of various narratives containing hate speech and efforts to reduce trust in the government.
Every policy issued by the government is sometimes never good in the eyes of a certain group. But in a democratic country, once again criticism is a necessity. No one is special in a democracy. All are equal. Thus, whatever the trigger, the insistence on fighting for the ratification of the RKUHP will only strengthen public assumptions about the government which is considered paranoid towards criticism and tends to want to be privileged.
Instead of taking advantage of the presence of resources such as experts and tools that are capable of drawing clear boundaries between criticism and insults, the government should remain relaxed. Face all criticism bravely. The government does not need to worry because criticism and insult will not be confused. Both were crystal clear.
Insults and criticism are two different things that do not need to be detailed, expanded, and clarified in the RKUHP. Because if it continues, Indonesia will not only be considered backward because it has turned its back on democracy by reviving the colonial article. But also our eastern culture then becomes questionable. Namely the culture of the Indonesian people who highly uphold ethics and morals as an inherent culture. So actually in this democracy, our nation no longer needs to be taught to distinguish between criticism and insults.
The balance that must be targeted by the government is an objective balance both in the eyes of the law, in the eyes of democracy and in the objective view of the wider community. Therefore, the government should use its initiative to produce legal products that are more innovative than to revive or codify colonial heritage articles which are far from creative and clearly turn their backs on the spirit of the times.