Anda punya rencana membuat seragam yang mencantumkan lambang negara, tetapi takut dipidana berdasarkan UU No. 24 Tahun 2009 tentang Bendera, Bahasa, dan Lambang Negara serta Lagu Kebangsaan (UU Lambang Negara)?
Sekarang, anda tidak perlu takut lagi.
Pasalnya, MK baru saja membuat putusan yang menyatakan kriminalisasi atas penggunaan lambang negara bertentangan dengan UUD 1945.
Putusan ini terkait permohonan yang diajukan sejumlah warga yang mengatasnamakan Koalisi Gerakan Bebaskan Garuda Pancasila.
Mereka memohon pengujian Pasal 57 huruf c dan huruf d yang mengatur larangan penggunaan lambang negara.
Uniknya, diantara para pemohon adalah Erwin Agustian dan Eko Santoso, dua orang yang pernah divonis tiga bulan karena menggunakan lambang Garuda untuk stempel organisasi.
“Mengabulkan permohonan para pemohon untuk sebagian, Pasal 57 huruf d dan Pasal 69 huruf c UU No. 24 Tahun 2009 tentang Bendera, Bahasa, dan Lambang Negara, serta Lagu Kebangsaan bertentangan dengan UUD 1945 dan tidak memiliki kekuatan hukum mengikat,” ucap Ketua MK Moh Mahfud MD, Selasa (15/1).
Dalam putusannya, MK menyatakan Pasal 57 huruf c yang juga diuji para pemohon bukan merupakan persoalan kontitusionalitas.
Mahkamah menyatakan secara faktual lambang negara lazim dipergunakan dalam berbagai aktivitas kemasyarakatan.
Seperti, disematkan di penutup kepala, sebagai bentuk monumen atau tugu, digambarkan di baju, atau seragam siswa sekolah. Penggunaan lambang negara seperti ini tidak termasuk penggunaan yang wajib maupun yang diizinkan seperti dimaksud Pasal 57 huruf d.
Karena itu, MK berpendapat larangan penggunaan lambang negara dalam Pasal 57 huruf dtidak tepat karena tidak memuat rumusan yang jelas.
Apalagi, larangan itu diikuti dengan ancaman pidana. Menurut Mahkamah, ancaman pidana seharusnya memenuhi rumusan yang bersifat jelas dan tegas (lex certa), tertulis (lex scripta), dan ketat (lex stricta).
Selain itu, Mahkamah menyatakan pembatasan penggunaan lambang negara oleh masyarakat adalah bentuk pengekangan ekspresi.
Pengekangan itu dapat mengurangi rasa memiliki dan mengurangi kadar nasionalisme. Terlebih, lambang Garuda Pancasila, mutlak menjadi milik kebudayaan bersama seluruh masyarakat.
“Apalagi jika mengingat Pancasila sebagai sistem nilai adalah terlahir atau merupakan kristalisasi dari nilai-nilai budaya bangsa Indonesia,” papar Hakim Konstitusi Ahmad Fadlil Sumadi di persidangan.
Dengan dihapuskannya Pasal 57 huruf d, maka secara otomatis berlakunya Pasal 69 huruf c juga tidak memiliki kekuatan hukum mengikat. “Terdapat hubungan yang erat antara kedua pasal itu sebagai suatu ketentuan hukum yang berlaku. Maka pertimbangan hukum Mahkamah terhadap Pasal 57 huruf d tersebut berlaku secara mutatis mutandis (otomatis, red) terhadap Pasal 69 huruf c,” tutur Fadlil.
Lalu bagaimana cara pemakaian lambang negara Garuda Pancasila dalam pakaian atau baju? Dalam pasal 54 ayat 3 disebutkan, bahwa Lambang Negara sebagai lencana atau atribut sebagaimana dimaksud dalam Pasal 52 huruf e dipasang pada pakaian di dada sebelah kiri. Dalam penjelasan ini juga berlaku untuk pemasangan emblem Lambang Negara dan Bendera Kebangsaan pada lengan jaket.
Bahwa penggunaan emblem Lambang Negara disematkan pada lengan sebelah kiri dan Bendera Kebangsaan dipasang di lengan bagian kanan. Mahkamah Konstitusi (MK) mempertegas tentang aturan penggunaan lambang negara Garuda Pancasila. MK menyatakan memakai lambang Garuda Pancasila secara sembarangan tetap akan ditindak pidana maksimal 1 tahun kurungan.
UU No. 24/2009 tentang Bendera, Bahasa dan Lambang Negara serta Lagu Kebangsaan yang menjelaskan tentang ketentuan mengenai ancaman pidana merupakan wewenang aparat penegak hukum dengan tujuan mencegah tindakan pihak tertentu yang akan menyalahgunakan lambang negara yang dapat merusak harkat dan martabat bangsa Indonesia.
Sumber : hukumonline.com
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ARPAC Berdiri pada 12-12-2012 .
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