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The Petitioner’s experts Oce Madril and Perdana Wiratman taking oath virtually to testify at the material judicial review hearing of Law No. 19 of 2016 on Electronic Information and Transactions, Tuesday (15/12/2020) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Government’s authority to restrict electronic information 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), said Gadjah Mada University’s Center for Anti-Corruption Studies (PUKAT UGM) director Oce Madril for the Petitioner at the fourth material judicial review hearing of the EIT Law on Tuesday afternoon, December 15, 2020. The petition No. 81/PUU-XVIII/2020 was filed by the editorial team of Suara Papua and the Alliance of the Independent Journalists (AJI).

Oce said based on Article 40 paragraph (2b) of the EIT Law, the Government has the authority to prevent the dissemination of use of electronic information whose content is unlawful. In addition, the Government also has the authority to restrict access and/or order electronica providers to restrict access to information or documents that have unlawful content. However, such authority is limited.

“The limited authority to restrict access only applies to information or documents that have unlawful content. So, there is a limit to it. However, the law doesn’t specifically describe how content is unlawful,” he said before the hearing led by Chief Justice Anwar Usman.

Oce explained that Article 40 paragraph (2b) of the EIT Law concerns authority on legal actions that concerns restricting access and electronic information/documents that have unlawful content and legal consequences for the parties whose access is restricted by the Government. He believes the authority is legal through the issuance of a written decree or beschikking.

Also read: Suara Papua and AJI Challenge EIT Law

Mechanism of Government Administration Law

Oce added that the implementation of the authority can create rights and obligations, and have legal consequences for certain individual or legal entities. “Therefore, the authority cannot only be exercised through government actions or concrete actions feitelijke handelingen as stipulated in the Government Administration Law, that the government actions apply only to concrete actions,” he said.

In addition, he said the procedure in the Government Administration Law shows guarantee of good governance. “The regulation is aimed at providing legal certainty, protection of human rights, and preventing abuse of authority,” Oce said.

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

Potential for Abuse

State administration law expert of Airlangga University Herlambang Perdana Wiratman, who the Petitioner presented, said the formulation of Article 40 paragraph (2b) of the EIT Law is unclear, which may lead to abuse.

“Such limitation is unclear especially, first, concerning the standard reference. Second, the authority inherent in government administration. And third, the efforts to resolve legal problems in the event of irregularities, abuse of authority, or internet content restriction? Moreover, the absence of a mechanism in realizing the obligations prescribed by the law, the first element above, which reflects absence of limitation and predictability and transparency in an administrative decision, potentially leads to abuse of authority and harm the principles of a law-based state,” he said.

Herlambang said such restriction to the right to internet must be done under clear legal standards or due process of the law, in line with the principles of a law-based state and human rights.

Also read: Govt: Citizens Can File Administrative Complaint against Content Restriction

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 12/17/2020 17:17 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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