1965 and had been labelled communist.
inatory. The Court held that, because Article 60(g) purported to prohibit a
group of citizens from nominating themselves for these parliaments, it clearly
‘had a nuance of political punishment for the group’.
plice, and/or an accessory. To place criminal responsibility upon a person
Constitutional Court Decision 011-017/PUU-I/2003.
306
Simon Butt
and then confiscate them.
20
While the Court held that these laws violated
freedom of expression and the right to not have property arbitrarily seized,
it appeared to be most concerned about the laws giving unfettered power to
the Attorney General to ban and seize books without judicial oversight.
21
The
Court declared:
In a Negara Hukum like Indonesia, due process – that is, law enforcement
through a judicial system – is imperative. If an act is to be characterised
as illegal, it must be [declared as such] by judicial decision. Banning the
distribution of items, such as printed materials, because they may breach
public order cannot be simply left to a government agency without a judicial
decision. The Attorney General’s power to prohibit the distribution of written
materials . . . without judicial process is one of the things an authoritarian
state [would do], not a Negara Hukum like Indonesia.
22
10.2.4. Presumption of Innocence
The Court held, in the Bibit and Chandra case (2009),
23
that citizens are enti-
tled to the presumption of innocence.
24
The applicants were two embattled
Commissioners of the Anti-corruption Commission (
Komisi Pemberantasan
Korupsi or KPK), Chandra Muhammad Hamzah and Bibit Samad Rianto.
They had been suspended from office while being investigated for misus-
ing their authority as Commissioners by issuing and revoking travel bans.
However, it was widely believed that they had been ‘set-up’ by senior police
they were investigating for corruption.
25
They feared that, once brought to
20
Specifically, Articles 1 and 6 of Law 4/PNPS/1963 on Securing Printed Materials that Impede
Public Order; and Article 30(3)(c) of Law 16 of 2004 on the Public Prosecution.
21
Indeed, the majority even declared that book seizure would not necessarily breach these rights
and freedoms, if obtaining judicial permission was a prerequisite to seizure.
22
Constitutional Court Decision 6-13-20/PUU-VIII/2010, para 3.15.
23
Constitutional Court Decision 133/PUU-VII/2009.
24
Though the Court had, in earlier cases, already made important statements about the pre-
sumption. For example, the Court declared, in Constitutional Court Decision 24/PUU-
II/2005, 36, that
[t]he presumption of innocence is a principle [under which] a suspect or defendant is con-
sidered not guilty until there is a final and binding decision of a court. This right is not only
guaranteed by the 1945 Constitution, as the constitution of a negara hukum, but has univer-
sally been accepted as a part of civil and political rights that must be respected, protected and
guaranteed (emphasis added).
25
These claims were proved true when the Constitutional Court, during its first hearing of the case,
allowed KPK-recorded taped conversations between suspects the KPK was investigating and sen-
ior prosecutors and police to be played in open court. These conversations revealed a plot to frame
Bibit and Chandra: Simon Butt, Corruption and Law in Indonesia (London: Routledge, 2012).