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Chief Justice Anwar Usman and Deputy Chief Justice Aswanto at the material judicial review hearing of the Law on Electronic Information and Transactions, Tuesday (17/11/2020) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Citizens who feel aggrieved by content restriction by the government as regulated in Article 40 paragraph (2b) of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT) can file administrative complaints and appeals, pursuant to Article 7 of the Government Administration Law, said the Ministry of Communication and Informatics’ Director General of Informatics Application Semuel Abrijani Pangerapan at a hearing on Tuesday, November 17, 2020. The hearing was led by Chief Justice Anwar Usman to hear the statement of the government. The petition No. 81/PUU-XVIII/2020 was filed by the editorial team of Suara Papua and the Alliance of the Independent Journalists (AJI), who challenge Article 40 paragraph (2b) of the EIT Law.

“The a quo provision doesn’t hinder and obstruct the Petitioners’ right to file a complaint to the court for the access termination by the government, because the government’s action can be declared unlawful by the court, pursuant to Article 19 paragraph (1) of the Government Administration Law,” said Semuel before the panel of justices.

On behalf of the Government, he explained that the a quo provision must be read as a whole along with the preceding norms, especially the reference norm, Article 40 paragraph (2a) of the EIT Law. Thus, it will be clear that these norms impose an obligation on the government to prevent the dissemination and use of electronic information and/or electronic documents whose content is prohibited by laws and regulations.

“The Petitioners’ argument that the a quo provision inhibits protection against abuse, including complaint and recovery against unilateral content restriction, is not true. In fact, Suara Papua’s website was recovered on December 20, 2016. In aition, the complaint and recovery against blockade or content removal was a technical implementation of the a quo provision that is regulated in Article 16 of the Regulation of the Minister of Communication and Informatics No. 19 of 2014,” Semuel explained.

Also read: Suara Papua and AJI Challenge EIT Law

Separatist Content

According to Semuel, the termination of access to the news site has gone through a process as regulated in the laws and regulations, that is, verification by a task team. The results showed that the Suara Papua website had separatist content that violated the law. The Ministry of Communication and Informatics had also allowed complaints against websites whose content the public deem problematic. In addition, he added, the Ministry had also allowed website managers to appeal for site blockage to be lifted. He explained that such a procedure was regulated in Article 16 of the Regulation of the Minister of Communication and Informatics No. 19 of 2014.

"In terms of technical implementation related to regulation of negative internet content and lifting of blockage of sites with negative content, the Ministry of Communication and Informatics already has a standard operating procedure (SOP). Reporting negative content and lifting of blockage of sites supports smooth normalization and also provides legal certainty. Thus, the a quo provision and its implementing mechanism are technically regulated by law, thus not violating the principle of predictability. The Ministry also provides the trust positive site for transparency in handling internet content that violates the law," Semuel explained.

Termination of access only applies to electronic information and/or electronic documents with unlawful content in order to protect human rights of other individuals, public interests, and/or national security. Therefore, it is in accordance with the principle of legitimacy as regulated in Article 19 paragraph (3) of the International Covenant on Civil and Political Rights (ICCPR). The room for recovery of blocked sites is in accordance with the principle of proportionality.

Also read: Suara Papua and AJI Revise Petition on EIT Law

The Petitioners felt harmed due to the Government’s authority as stipulated in Article 40 paragraph (2b) of the EIT 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 11/18/2020 12:51 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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