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State administration law expert Harsanto Nursadi taking oath before testifying at the judicial review hearing of Law No. 19 of 2016 on Electronic Information and Transactions on Monday (14/6/2021). Photo by Humas MK/Ifa.

Monday, June 14, 2021 | 15:44 WIB

JAKARTA, Public Relations—The material judicial review hearing of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT) was held by the Constitutional Court (MK) once again on Monday, June 14, 2021. The case No. 81/PUU-XVIII/2020 was filed by the editorial team of Suara Papua and the Alliance of the Independent Journalists (AJI). At this sixth hearing chaired by Chief Justice Anwar Usman, the Government presented state administration law expert Harsanto Nursadi.

Harsanto talked about the governments acts and decisions. He said that state administration concerns the procedure of decisions and/or actions made/taken by the government and/or its agencies.

Acts by the government, he said, can be real or legal. Real actions don’t have legal consequences or don’t result in or change one’s rights and obligations. Meanwhile, legal actions may result in or change one’s rights and obligations and have legal consequences.

“In this case, the [Ministry of Communication and Informatics] received an electronic request, on which it then implement a restriction of access. There was of course a procedure to check whether the website existed. However, the ministry wasn’t authorized to determine [which content was to be blocked], because the authority was with the ministry or institution that made the request,” he said virtually.

Harsanto believes the Ministry of Communication and Informatics took the action, based on its authority and following procedure, by sending an email to the relevant ISP on requests by other agencies. The ministry’s action was detailed in an email, not a decree. The action of restricting access was a legal action aimed at protecting the government and the people.

He further explained that actions and decrees have legal bases and procedures. These procedures require checks and balances, without which the actions and decrees can be reviewed in a court. “If it is proven that there is no procedure, the [state administrative court] may revoke them,” he said.

Also read:

Suara Papua and AJI Challenge EIT Law

Suara Papua and AJI Revise Petition on EIT Law

Govt: Citizens Can File Administrative Complaint against Content Restriction

Oce Madril: Government’ Authority to Restrict Internet Access Limited

Regulations of Internet Access Restriction Necessary

The Petitioners feel disadvantaged due to the Government’s authority as stipulated in Article 40 paragraph (2b) of the EIT Law, which gives 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. They believe such an authority belongs to a court, as stipulated in Article 20 paragraph (2) and Article 25 of Law No. 48 of 2009. In addition, 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.

The Petitioners also believe 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. They argue 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: Nur R.
PR: Andhini Sayu Fauzia
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 6/15/2021 18:20 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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