---

Constitutional Justice Daniel Yusmic P. Foekh speaking at a national webinar organized by the Student Executive Body (BEM) of the Law Faculty of Muhammadiyah University of Surakarta, Saturday (7/11/2020) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Daniel Yusmic P. Foekh spoke a national webinar about "The Controversies of Freedom of Opinion Amid the Implementation of Catchall Articles of the EIT Law" on Saturday morning, November 7, 2020. The event was organized by the Student Executive Body (BEM) of the Law Faculty of Muhammadiyah University of Surakarta (FH UMS).

"Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law) has been amended to Law No. 19 of 2016. One of the reasons for the amendment is related to a Constitutional Court decision," he said before the faculty members and students of FH UMS. 

He said Article 27 of the EIT Law remains, with changes to the elucidation to paragraphs (1), (3) and (4), so that the elucidation to the article follows Law No. 19 of 2016. However, Article 28 remains, while Article 45 changed. Two articles were inserted between Articles 45 and 46 in Law No. 19 of 2016.

He then talked about Article 27 paragraph (3) of the EIT Law, which reads, “No Person shall intentionally and unauthorizedly distribute and/or transmit and/or cause to be accessible Electronic Information and/or Electronic Records with contents of affronts and/or defamation.” “I believe what compelled the students to organize this national webinar was that this article is deemed a catchall article that could hamper freedom of speech due to criminalization,” he said.

Article 27 paragraphs (1), (2), and (4) of the EIT Law also prohibits unauthorized distribution and transmission of electronic information. However, Justice Foekh added, there is a threat of criminal sanctions in those articles as well as in Article 45 paragraph (3) of Law No. 19 and 2016, which reads, “Any Person who intentionally and unauthorizedly distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents of affronts or defamation as referred to in Article 27 section (3) shall be sentenced to imprisonment of at most 4 (four) years and/or a fine of at most Rp750,000,000 (seven hundred fifty million rupiah).”

He also talked about the catchall Article 28 paragraphs (1) and (2) of the EIT Law. The first paragraph of the article reads, “No Person shall intentionally and unauthorizedly disseminate false and misleading information resulting in consumer loss in Electronic Transactions.” Meanwhile, the second paragraph reads, “No Person shall intentionally and unauthorizedly disseminate information with intent to incite hatred or dissension on individuals and/or certain groups of community on the basis of ethnic groups, religions, races, and intergroups (SARA).” Violations to the provisions in this article are subject to imprisonment up to six years and a fine of at most one million rupiah, based on Article 45A.

Justice Foekh also revealed that the Constitutional Court has passed 11 decisions on the EIT Law. In Decision No. 50/PUU-VI/2008, the Court denied a petition on Article 27 paragraph (3) and Article 45 paragraph (1) of Law No. 11 of 2008. In Decision No. 2/PUU-VII/2009, the Court dismissed a petition on Article 27 paragraph (3) of Law No. 11 of 2008. The Court granted the entire petition on Article 31 paragraph (4) of Law No. 11 of 2008 in Decision No. 5/PUU-VIII/2010. It also ruled in cases No. 52/PUU-XI/2013 and No. 1/PUU-XIII/2015.

He then highlighted Decision No. 50/PUU-VI/2008, in which the Court stated that respect for dignity must not be harmed by actions that are against human values such as humiliation and defamation. The Constitution guarantees that every person has the right to protection of themselves, their family, honor, dignity, and property and is entitled to a sense of security and protection from fear of exercising/not exercising their human rights. He also talked about Article 12 of theUniversal Declaration of Human Rights (UDHR) as well as Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR) that uphold and guarantee human dignity.

Justice Foekh said that despite operating virtually, activities in the cyberspace involve people living in the real world. Therefore, activities in the cyberspace is regulated by law and everyone’s rights in the cyberspace are limited by those of others. Without any harmony between the law and IT and without statutory regulations that protect the people’s rights, activities in the cyberspace could potentially disturb order and justice. The Constitutional Court, he said, is faced with having to protect the people’s constitutional rights to freedom of speech, opinion, communication, and information versus having to protect the people’s basic rights of dignity and reputation.

Justice Foekh also explained the Court’s four authorities and one obligation. The Court has the authority to adjudicate at the first and last level laws against the 1945 Constitution with decisions that are final, to decide on authority disputes between state institutions whose authorities are granted by the 1945 Constitution, to decide on the dissolution of political parties, and decide on disputes over general election results. It is also obligated to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president, pursuant to Article 24C paragraphs (1) and (2) of the 1945 Constitution.

He also said that as the guardian and final interpreter of the Constitution, the guardian of democracy, the protector of human rights, the protector of the citizens’ constitutional rights, and the protector of the state ideology, the Constitutional Court has another additional authority to rule on regional head election disputes until a special body is established to take over. In the legal consideration of the Decision No. 97/PUU-XI/2013, the Court states that in order to avoid doubt, legal uncertainty, and vacuum of institution authorized to settle disputes over regional head election as there has been no law regulating this matter, the settlement of such disputes remains the authority of the Constitutional Court.

Justice Foekh also revealed the statistics of the Court decisions. Judicial review of laws has the highest number of cases at 1,321 (43.96%), followed by local election (pilkada) dispute cases at 932 (32.68%), legislative election dispute at 671 (22.33%), interagency dispute at 26 cases (0.87%), and presidential election at 5 cases (0.17%). As many as 1,305 cases (45.81%) were rejected, 1,005 cases were struck out (35.28%), 397 cases (13.93%) were granted, 171 cases (5.75%) were withdrawn, 60 cases (2.11%) fell through, 25 cases (0.84%) received interlocutory injunction, and the Court stated it didn’t have the authority to hear 11 cases (0.32%).

Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/16/2020 16:34 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.

---