Dede Leni Mardianti, Jakarta – Nine law students from several Indonesian universities have filed a judicial review at the Constitutional Court challenging a provision in the country's newly enacted Criminal Code (KUHP), arguing that it threatens freedom of expression and legal certainty.
The students are contesting Article 302 paragraph (1) of Law No. 1/2023 on the Criminal Code, which criminalizes publicly inciting others to abandon religion or belief.
The petitioners include Rahmat Najmu, a law student at Malikussaleh University, and eight law students from Universitas Terbuka: Wahyu Eka Jayanti, Scholastica Asyana Eka Putri, Reni Rianti, Alliffah Wahyu Sanyoto T., Rifky Andy Darmawan, Gita Rahmawati, and Rizka Aliya Putri.
They argue that the provision constitutes a so-called pasal karet – a vague or elastic article – because it fails to clearly define what constitutes "incitement."
According to the petitioners, this lack of clarity creates legal uncertainty and opens the door to broad and subjective interpretation, in violation of the principle of legality.
"The ambiguity leads to legal uncertainty and allows overly broad and subjective interpretations, which contradict the principle of legality," said Nissa Sharfina Nayla, representing the petitioners, during a preliminary hearing at the Constitutional Court in Jakarta on Tuesday, January 13, 2025.
Article 302 paragraph (1) of the Criminal Code stipulates: "Any person who, in public, incites with the intention that someone becomes irreligious or abandons a belief recognized in Indonesia shall be punished with imprisonment of up to two years or a fine of up to Category III."
The petitioners note that members of Indonesia's religious majority, including students and academics, are actively involved in public discourse, activism, and scholarly discussions on issues related to religion, democracy, and constitutional law.
In this context, they argue, the undefined term "incitement" poses a serious risk to legitimate debate.
Nissa emphasized that the term is not clearly or firmly defined, either in the article itself or in the explanatory section of the Criminal Code.
As a result, there is no legal certainty regarding the boundaries of conduct that may be classified as "incitement."
With the enforcement of Article 302 paragraph (1), the petitioners said they face a heightened risk of criminalization when exercising their constitutional rights to express opinions, thoughts, and beliefs in public.
They warned that personal expression could be construed as a criminal act even when it involves no coercion, violence, or intimidation, and is carried out solely as part of an exchange of ideas protected by the Constitution.
They further argued that the constitutionality of expression cannot be determined based on feelings of offense, psychological discomfort, or the subjective judgments of certain parties.
Instead, they said, restrictions on expression must be assessed objectively, based on whether the expression poses a real and direct threat to legitimate public interests.
In their petition, the students asked the Constitutional Court to declare Article 302 paragraph (1) of the Criminal Code unconstitutional and legally non-binding, on the grounds that it contradicts the 1945 Constitution.
The case is being examined by a panel of judges led by Constitutional Court Chief Justice Suhartoyo, with Constitutional Justices Daniel Yusmic P. Foekh and M. Guntur Hamzah as panel members.
During the initial hearing, Justice Guntur urged the petitioners to re-examine and fully understand the challenged provision within the broader framework of Indonesia's legal system.
"Try to challenge this norm from the perspective of a Pancasila-based rule of law, and consider whether the conclusion of your petition still stands," Guntur said.
At the close of the hearing, the panel instructed the petitioners to revise and refine their petition. The court scheduled the next hearing after the revised submission is filed, which must be completed within 14 days.