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House statement conveyed by Anwar Rachman in the judicial review of the Telecommunications Law, Monday (21/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

Article 42 paragraph (1) of Law No. 36 of 1999 on Telecommunications has provided fair guarantee, protection, and legal certainty in the criminal court process as well as equal treatment before the law.

"Therefore, the a quo article has absolutely no connection with Article 28D paragraph (1) of the 1945 Constitution. Thus, the Petitioner has no right to review the a quo article," said Member of House Commission III Anwar Rachman in the follow-up session of judicial review of the Law No. 36 of 1999 on Monday (21/1/2019) afternoon. 

Article 42 paragraph (1) of the Telecommunications Law reads, “For the purposes of criminal prosecution, the telecommunications services operator may record the information transmitted and/or received by the telecommunication services operator and may provide the information required on the basis of:a. a written request from the Attorney General and/or the Chief of Police of the Republic of Indonesia for certain criminal offenses; b. the request of an investigator for certain criminal offenses- in accordance with prevailing laws.”

Representing the House, Anwar added that the provision of the article reviewed by the Petitioner did not reduce his constitutional rights and authority. In the case of the Petitioner\'s legal standing as a defendant, Anwar added, as a defendant his rights are still protected by the state. 

The House responded to the Petitioner\'s argument that audio recordings could be useful to discover the material truth in the Petitioner\'s case, to prove if there was communication between the Petitioner and any other person regarding illicit circulation of narcotics. 

"The Petitioner did not explain the concrete and specific implications of the enactment of the a quo article. The Petitioner\'s argument is only an assumption. The House is of the opinion that [the Petitioner\'s constitutional rights and authority have not been harmed] by the enactment of the provision of the article reviewed by the Petitioner. In addition, the Petitioner could not explain [specific and actual, or at least potential], constitutional losses, which, according to logical reasoning, can be assured of occurring [and experienced by] the Petitioner due to the enactment of the article reviewed by the Petitioner," Anwar added. 

With the absence of constitutional losses experienced by the Petitioner, said Anwar, it is clear and certain that there is no causal relationship between the losses argued by the Petitioner and the enactment of the article impugned by the Petitioner. 

The petition No. 94/PUU-XVI/2018 was registered by Sadikin Arifin. The Petitioner argued that his request that recorded conversations be presented before the hearing was not without basis. According to the Petitioner, the recorded evidence was crucial in proving whether or not there had been discussion on narcotics between the Petitioner and a foreign national (WNA), who were accused of carrying out a joint drug crime. 

According to the Petitioner, based on verification in the his criminal trial, there is at least the fact, among others, that a person accused along with him of committing a criminal offense of illicit narcotics distribution died from being shot by officers of the National Narcotics Agency (BNN) during an arrest, which then established the Petitioner as a single defendant in the North Jakarta District Court. 

In addition, the Petitioner\'s had given statements throughout the trial denying possession of the item and denying any communication with foreigner who had been shot by BNN officers or with anyone related to narcotics. He also denied the laboratory result of his urine sample that was said to show indication of narcotics or psychotropic drugs. During a search in his residence, no narcotics or related items were found. 

In the Petitioner\'s criminal case, his ID was confiscated by the investigator. The BNN officer who stood as witness in the trial said that the ID was used to prove the Petitioner\'s identity. Therefore, the Petitioner wondered why there was no evidence to suggest any conversation between the Petitioner and the foreigner or anyone related to narcotics. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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