REPUBLIKA.CO.ID, JAKARTA – An Expert on Constitutional Law, Yusril Ihza Mahendra, said the police and law enforcers should be careful in applying the criminal provisions in the Act (Constitution) No. 24 of 2009 on the Flag, Language, and State Symbol. He said it needed a persuasion in dealing with violations of the prohibition to make writing, drawing, and graffiti on the national flag.
"Because ordinary people, even state officials, bureaucrats, and law enforcers, many of them do not understand about the state flag, the size, the material, the instructions for ‘does and don’ts’," Yusril said in a statement on Monday (January 24).
Based on the constitution, the size of the red part and the white one were definitely equal. The width of the flag should be two-thirds of its length. The material is made from fabrics that are not easily faded. For certain purposes, the size has also been regulated by law.
Thus, Yusril said, not all red and white fabrics were automatically being the Indonesian flag. "Red and white fabrics which do not meet the requirements to be called as the Indonesian flag is not the Indonesian flag," he said.
Ahead of commemoration of Independence on August 17, many kinds of attributes inspired by the color of national flag were sold. (Mg_ROL76)
Yusril gave an example when there was a milk can was painted red on the top and white at the bottom, it could not be called a national flag. On its highest level, the red and white colors could only 'represent' the flag of the Republic of Indonesia, but it was not the flag of the Republic of Indonesia. All the provisions have been set forth in Article 4 of Law No. 24 of 2009.
The Article 24 of Law No. 24 of 2009 also included a ban for damage, tearing, trampling, burning, or performing other actions with the intent to desecrate, to insult, or to degrade the honor of the national flag. Those who violate this regulation were punishable by imprisonment up to five years or a fine of maximum 500 million rupiahs.
The red and white flag with tauhid sentence written in Arabic that made Nurul Fahmi, an East Jakarta's resident, the suspect of defaming national flag. (Youtube)
The regulation also mentioned a ban for any person who print, embroider, and write letters, numbers, images, or other signs and put a badge or any objects on the national flag. Any violation would be punishable by imprisonment for maximum a year or a fine of maximum 100 million rupiahs.
The formulation of criminal offense on Law No. 24 Year 2009, it is clear that there should not be an element of malicious and negative intent to desecrate, to insult, or to degrade the honor of the national flag for those who damaging, tearing, trampling, burning, or performing other acts prohibited by law. "So those who were not intentional and has no intention to tarnish, to insult, and to degrade the honor of the national flag cannot be convicted as to offense," said Yusril.
Metallica personnels unfolded the Red and White flag in a concert on 2013. (Republika/Edwin Dwi Putranto)
However, it was different case for those who print, embroider, and write letters, numbers, images or other marks mentioned in article 67 letter c of this law. The element of intention and the intent to tarnish or to degrade the flag of the country it is not necessary.
So, whoever did it, intentionally or unintentionally to desecrate, to insult, and to degrade the flag, the act could be implemented with the threat of a year imprisonment or a fine of 100 million rupiahs. The maximum penalty of one year imprisonment for violating article 67 letter c showed that the offense is classified into a misdemeanor.
Therefore, Yusril argued that the enforcement of this chapter should be conducted by law enforcers in a discreet way. "Do not be carried out in haste. Don’t be cherry picking to those who were disliked and who opposed the government, while others who did the same was not given any law enforcement action," he said.
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