At present, the only available draft of the amended code is the same version that sparked protest in 2019, and between it and recent statements by government officials, it is clear the draft still contains provisions rejected by the public, specifically banning “insults” to the president, legitimate government and state institutions. 

These provisions threaten the freedom of expression guaranteed by the 1945 Constitution. Moreover, they undermine a fundamental value of democracy that is a prerequisite to the rule of law. If citizens cannot speak freely about their leaders, they cannot fully engage in the lawmaking process, and implementing new legislation becomes an act of force met with popular resistance.

Cutting corners in democracy will always jeopardize the rule of law. Prior rulings by the Constitutional Court have recognized this relationship. Decisions 013/PUU-IV/2006 to 022/PUU-IV/2006 annulled articles 134, 136 and 137 of the current Criminal Code, which regulate insults to the president. The court ruled that those criminal provisions followed a colonial legacy out of step with the principle of freely criticizing presidential performance.

Reviving these articles would mark a setback for the country’s hard-won democracy, and there is historically justified fear that regulations to silence presidential criticism would be abused.

Freedom of expression, of course, is not limitless. Digital communication presents new challenges for governments to maintain public order and combat misinformation, and unrestrained speech can become a threat to democracy when its aim is violence.

Lawmakers are always left with a paradox: Both protecting and limiting expression can harm democracy and the rule of law. Indonesia is not alone in wrestling with this question.

The history of the United States featured legal restraints on criticism of elected officials. Two Sedition Laws were used to threaten and jail citizens who spoke out against the government. The first was used by president John Adams in 1799 to imprison those who dared to “write, print, utter or publish […] scandalous and malicious […] writings against the government” and elected officials. More alarmingly, it punished those who advocated “opposing or resisting any law […] or any act of the President”. 

Under such language, speaking out or campaigning against government policy was potentially illegal. At its core, the law was designed to squash the opposition party, harass a critical press and scare citizens, and at least twenty-five people were charged and convicted under it. 

In 1801, the new administration under president Thomas Jefferson let the restriction expire, but over 100 years later, president Woodrow Wilson signed a new Sedition Act, again banning ridicule of the government. Enacted during World War I, it took the additional and extraordinary step of outlawing disagreement with US actions abroad, an attempt to silence opposition to the war effort. Nearly 1,000 citizens were prosecuted under the law, including a former presidential candidate. 

Though eventually repealed, it was first challenged at the Supreme Court. In a series of cases, the court interpreted the First Amendment of the US Constitution to establish what types of speech could be punished by the government. It upheld several convictions, but the rulings laid the groundwork for strong expressive protections. 

Under modern jurisprudence, American courts rarely uphold a regulation if it targets the content of expression. Courts sometimes allow the government to restrict when, where and how individuals express their views, but even these cases require the government to show they are protecting a significant public interest and have done so in a way that does not overburden expressive freedom. 

For example, courts would strike down a law banning criticism of the president but would likely uphold blocking someone from screaming expletives while the president addresses the nation in a major speech. Such conduct would disrupt a significant government function, and individuals are still free to criticize the president in the street or at a rally, even while the address is being delivered. 

More recent Supreme Court rulings have extended these protections to online speech. Digital platforms can regulate content according to company standards, but the court recognizes the important role of the internet and other communication technology in public discourse. 

There are important exceptions to these rules, namely if speech can be shown to incite criminal conduct. The standard is high: An angry citizen shouting “the president deserves to be killed” does not constitute incitement. For a court to uphold the arrest, the government must show the speaker intended for someone to murder the president and there was a likelihood of imminent danger.

This is difficult to prove, but the Supreme Court maintains that individual expression is so vital to democracy that constraints on speech, especially against the government, should be very limited.

The US is just one example of how a modern democracy has balanced the needs of individual expression and public order. However, the Sedition Acts and the court’s jurisprudence offer lessons for Indonesia’s House of Representatives and the Constitutional Court.

As mentioned, the Congress let expire or directly repealed both of these laws. The House can still amend the Criminal Code to remove similar restrictions and respect the rights of Indonesians.

But if the House remains determined, the Constitutional Court should protect the rights of Indonesian citizens by reviewing these provisions under the Constitution. Articles 28F, 28I and 28J indicate a clear constitutional protection for individual expression, thought and access to competing views that must be upheld if Indonesia is to maintain its democratic values. 

The court may be unwilling to adopt standards as stringent as their American counterpart. However, the Criminal Code’s speech restrictions are particularly dangerous, as they insulate powerful people from much-needed public feedback, no matter how harsh, disorderly or unjustified it may be. In fact, the Constitution acknowledges the relationship between expression and “democratic society”, suggesting a constitutional basis not just for free speech but for the conditions of democracy itself.

One could argue, then, that acts of expression toward the government are especially deserving of protection from that government. Indeed, that is the stance the court should adopt, and if the House moves forward with the Criminal Code amendment, it is the only defense the people will have.       

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Gray Whitsett is a juris doctor candidate working this summer with the Center for Constitutional Study (PUSaKO) at the University of Andalas, Padang, where Haykal is a researcher.