8.
In the new Criminal Code, there are five forms of special crimes that are
regulated, those are Crime of Gross Violations of Human Rights Terrorism,
Corruption, Money Laundering, and Narcotics, which are included in the
Chapter on Special Crimes. This arrangement can reduce the essence of the
specificity/Lex Specialis of the criminal act. With regard to the crime of
gross violation of human rights, further arrangement is required to ensure that
the new Criminal Code will be in line with the existing Law No. 26/2000 on
Human Rights Court. The new Criminal Code has also reduced the length of
punishment from a minimum of 10 (ten) years to 5 (five) years.
9.
Until this report was prepared, there were no government plans to ratify the
first Optional Protocol of the ICCPR.
B. Constitutional and legal framework within which the Covenant is
implemented
10. Although the use of the ICCPR in court proceedings is still limited, Komnas
HAM has noted positively several court decisions that have used the ICCPR
as the basis for court decisions.
11. One of the recent uses of ICCPR was in the court proceedings of the lawsuit
against Haris Azhar and Fatia Maulidiyanti - human rights activists who were
accused of defamation under Law No. 11 of 2008 concerning the Information
and Electronic Transactions (ITE Law). The court ruled that Haris Azhar and
Fathia Maulidiyanti had not been legally and convincingly proven guilty of
committing a crime as charged under the Cogitationis Poenam Nemo Patitur
considerations which means that no one should be punished because of what
they think.
12. The Second Amendment to Law No. 11 of 2008 concerning the Information
and Electronic Transactions (ITE Law) was officially promulgated in January
2024 with the enactment of Law No. 1/ 2024. However, the revision process
of the ITE Law was carried out without adequate public participation. It
should be noted that several articles resulting from the second revision still
carry risks to human rights. These include Article 27 Paragraph (3) regarding
insults and defamation; and Article 28 Paragraph (2) regarding the
dissemination of information that causes hostility, and hatred and contains
sentiments of ethnicity, religion, race, and inter-group relations (SARA).
13. Apart from ITE Law, Komnas HAM noted several laws and regulations that
carry risks against civil and political rights, namely: the Law on Mass
Organizations, and the Omnibus Law on Job Creation.
14. Meanwhile, Law No. 6/2023 on the Enactment of Government Regulation in
Lieu of Law No. 2/2023 may limit the meaningful participation of trade