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The Petitioner’s attorney Rizky Yudha delivering the points of the petition revision virtually at the judicial review hearing of Law on Electronic Information and Transactions (EIT), Monday (26/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another judicial review hearing of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT) on Monday afternoon, October 26, 2020. At the hearing led by Constitutional Justice Daniel Yusmic P. Foekh, the Petitioner’s attorney Rizky Yudha conveyedthe points of the petition revision following the justices’ advice at the previous hearing.

He said the Petitioners had reduced number of attorneys from 22 to 19. They also added the Court’s authority based on Article 9 paragraph (1) of Law No. 12 of 2011 on Statutory Regulations as amended by Law No. 15 of 2019, which stipulates that laws that violate the 1945 Constitution are to be reviewed judicially by the Constitutional Court.

Risky added that Petitioner I affirmed his legal standing as a citizen who, based on Article 51 of the Constitutional Court Law can file a judicial review petition. The Ministry of Communication and Informatics had sent a letter to block access to the news site Suara Papua for allegedly spreading some unlawful information. As one of its contributors, Petitioner I suffered specific and actual loss of constitutional right to information, which is guaranteed by Article 28F of the 1945 Constitution.

Petitioner II also affirmed their potential constitutional loss. They are the association and private legal entity Alliance of the Independent Journalists (AJI) that, based on their statutes and bylaws, offer advocacy to promote freedom of the press and the fulfillment of public right to information on their website.

The Petitioners also added Article 1 paragraph (3), Article 28D paragraph (1), and Article 28F of the 1945 Constitution as touchstones. They affirmed their argument that Article 40 paragraph (2b) of the IET Law is against the guarantee of fair legal certainty and equal treatment before the law stipulated in Article 28D paragraph (1) of the 1945 Constitution. The Petitioners added an argument in point 2 that legal certainty and equal treatment before the law are some of the main characteristics of a rule of law as stipulated in Article 1 paragraph (3) of the 1945 Constitution.

In the petitum, the Petitioners requested that Article 40 paragraph (2b) of the IET Law be declared not legally binding and conditionally unconstitutional against Article 1 paragraph (3), Article 28D paragraph (1), and Article 28F of the 1945 Constitution insofar as not interpreted as “In conducting the prevention as referred to in paragraph (2a), the Government is authorized to terminate access and/or order Electronic System Operators to terminate access to Electronic Information and/or Electronic Documents that have unlawful content after issuing a written administrative decree or state administrative decision.”

Also read: Suara Papua and AJI Challenge EIT Law

The Petitioners felt harmed due to the Government’s authority as stipulated in Article 40 paragraph (2b) of the IET Law, which have the Government immense authority to exercise what used to be a court’s authority to enforce law and justice to examine, adjudicate, and rule on allegedly unlawful electronic information and/or documents.

The Petitioners believe such an authority belongs to a court, as stipulated in Article 20 paragraph (2) and Article 25 of Law No. 48 of 2009. Ade added that the Government’s right to terminate access is a restriction to the freedom of speech and information. This authority must be monitored strictly by the court in order to minimize Government’s abuse of power. Ade stressed that the Government’s authority to arbitrarily interpret whether electronic information and/or documents have unlawful content is against the principle of due process of law.

The Petitioners also believe that if the articles were left to be ambiguous and unclear regarding the unlawfulness of electronic information and/or documents, the Government would have the absolute authority to control and monopolize access to information. This will keep the public from receiving and expressing information to monitor the Government through the court. For those reasons, the Petitioners requested that the Constitutional Court declare Article 40 paragraph (2b) of Law No. 19 of 2016 unconstitutional and not legally binding.

Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 10/28/2020 14:54 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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