Board of Constitutional Justices during the decision reading for the review of Act on Information and Electronic Transaction (ITE) conducted on Thursday (24/2). In the verdict, The Court granted the petition in its entirety.
Jakarta, MKOnline - Interception was a form of violation on the rights on privacy which was against the 1945 Constitution. The rights on privavy was a part of the derogable rights yet the limitation on this human right could only be done through an Act as mentioned in Article 28J paragraph (2) of the 1945 Constitution. That was the Constitutional Court (The Court) opinion on the decision reading session for the judicial review of Act on Information and Electronic Transaction (ITE) which was conducted on Thursday (24/2). In the verdict, The Court granted the petition in its entirety.
The Petition number 5/PUU-VIII/2010 on the review of Act on ITE was filed by Anggara Supriyadi, Widodo Eddyono and Wahyudi. The Petitioners demaded The Court to annul Article 31 paragraph (4) of Act 11/2008 which stated “Further arrangement on the procedure of interception as mentioned in paragraph (3) is arranged by a Government Regulation.” The Petitioners argued that the stipulation was against the Article 28G paragraph (1) and Article 28J paragraph (2) of the 1945 Constitution.
The stipulation on the interception procedure according to the Petitioner was not supposed to be arranged further in a Government Regulation but through an Act. It was due to the fact that an arrangement through Government Regulation was not sufficient to cover the articulation of interception procedures.
Besides that, Petitioner argued that the interception by law enforcers or state’s official institution would still be a controversy because it was a practice of invasion to citizen’s rights on privacy which cover the privacy on personal life, family life, or correspondence. The unclear arrangement on interception would be potential to be abused which would result in the violation on the Human Rights of the Petitioners and people in general.
The Court in their opinion stated that in its development, interception was often used in solving certain legal process, for example investigations of criminal cases in disclosing terrors, corruption, and narcotics and drug abuse. This allowed interception was also known as lawful interceptions.
The authority to intercept was a very sensitive matter, because in one side it was a limitation on Human Rights; on the other side, it had an aspect of legal importance. Thus, the regulation on the legality of interception had to be formed and formulated accordingly to the 1945 Constitution.
The Court considered that so far there had not been a comprehensive regulation on interception. In some countries, the arrangement on this problem was arranged in Book of Criminal Codes (KUHP0, such as in the USA, the Netherlands, and Canada. Meanwhile in Indonesia, the regulation was spreaded in many legislation products. There was no standard regulation that allowed a deviation in the implementation. A synchronization could only be done by a regulation in the level of an Act and not by Government Regulation.
Therefore, a special Act that regulated interception in general until the procedures for each authorized institution was needed. The Act was of high importance because so far there had not been a synchronized regulation on interception that raised a potential to damage the constitutional rights of the citizen in general.
Meanwhile, Government Regulation could not regulate the limitation of Human Rights. Government Regulation in form was merely an administrative regulation and did not have any authorities to cover the limitation on Human Rights
Consequently, in the verdict of The Court granted the Petitioners’ petition in its entirety. The Court announced that Article 31 paragraph (4) of Act 11/2008 on ITE was against the 1945 Constitution and did not have a binding legal force. (Nur Rosihin Ana/mh/YDJ)
Monday, February 28, 2011 | 14:59 WIB 201