Director General of Intellectual Property Rights of the Ministry of Law and Human Rights Ahmad M. Ramli giving statement representing the Government in the judicial review of Law Number 36 of 1999 on Telecommunication, Wednesday (9/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

Constitutional Court (MK) held the judicial review hearing of Law No. 36 of 1999 on Telecommunication on Wednesday (9/1) afternoon. The hearing of case No. 94/PUU-XVI/2018 was to hear the statement of the Government, represented by the Director General of Intellectual Property Rights of the Ministry of Law and Human Rights Ahmad M. Ramli.

Ramli said, in principle, phone tapping was an unlawful activity as stipulated in Article 40 of the Telecommunication Law and was punishable as stipulated in Article 56 of the Telecommunication Law. However, Article 42 paragraph (1) of the Telecommunication Law being reviewed by the Petitioner has obliged telecommunication operators to keep information sent and/or received by customers of telecommunications services provider through the telecommunication network and/or services it carries out confidential. The provisions of Article 40 and Article 42 paragraph (1) of the Telecommunication Law, according to the Government, indicate that the a quo law provides acknowledgement and protection of right to privacy.

"Exception to the right to privacy protected by the Telecommunication Law provides space for telecommunication service users and law enforcement officers, namely the Attorney General, the Indonesian Police Chief and, investigators of certain criminal offenses to obtain information records in accordance with the provisions of legislation carried out based on request as stipulated in Article 41, Article 42, and Article 43 of the Telecommunication Law," explained Ramli to the panel of justices led by Chief Justice of the Constitutional Court Anwar Usman. 

Ramli also explained that there were two recording activities that could be carried out by telecommunication services providers as stipulated in Article 41 of the Telecommunication Law, namely of the use of telecommunication facilities and of information. However, regarding the recording of use of telecommunication facilities, Article 41 of the Telecommunication Law has given the telecommunication service users the right to request a recording of the use of telecommunication facilities to telecommunication services providers in order to prove the validity of the use of the telecommunication facilities.

"In terms of norm and implementation, recording of the use of telecommunication facilities in the provision of Article 41 of the Telecommunication Law is in the form of data on the use of telecommunication facilities at least the last three months as of the receipt of written request, in the form of call data record (cdr), including duration, incoming and outgoing call times, short message service (sms), billing, and routing, where the recording of the use of telecommunication facilities is not in the form of recorded conversations," said Ramli.

The petition filed by Sadikin Arifin argued that the Petitioner had been harmed by the enactment of Article 42 paragraph (2) of the Telecommunication Law. He felt that his constitutional rights have been impaired, that is, the rights to fair recognition, guarantee, protection, and legal certainty as well as equal treatment before the law. The Petitioner had not received equal opportunity as the subject as allowed by the provisions of the Telecommunication Law to present recorded conversations and transcripts in the criminal trial proceedings, while in fact, suspects/defendants (in casu the Petitioner), based on the principle of due process of law that is one of the bases of a state of law, have equal standing when undergoing criminal trial proceedings with the law enforcement. In addition, the enactment of the Telecommunication Law does not provide protection to the suspect/defendant’s rights to a fair trial. The suspect and/or defendant (in casu the Petitioner) was not given legal right to access audio recordings and transcripts for his defense against the allegation made by the prosecutor. (Nano Tresna Arfana/LA/Yuniar Widiastuti)