Chief Expert Staff of the Presidential Staff Office Ifdhal Kasim testifying virtually at the material judicial review hearing of Law No. 19 of 2016 on Electronic Information and Transactions, Tuesday (3/8/2021). Photo by Humas MK/Panji.
Tuesday, August 3, 2021 | 20:31 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) once again held a 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) virtually on Tuesday, August 3, 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). This hearing had been scheduled to hear the testimonies of the House of Representatives (DPR) and experts presented by the Government.
Before the bench chaired by Chief Justice Anwar Usman, Chief Expert Staff of the Presidential Staff Office Ifdhal Kasim said the digital era was marked by the emergence of platform companies as intermediaries for information and communication transactions, including e-commerce.
“As we know, the models for obtaining and exchanging communication information, are personal, such as email and so on, and through social media such as Facebook, Twitter, and so on. Likewise, newspapers, magazines, and books are also available online through the internet; they are also called new media platforms,” he explained.
However, he added, there is also internet abuse that pollutes public spaces, such as hoaxes against certain ethnicities and races (hate speech), online child pornography, cyber terrorism, incitement, insult, war propaganda, etc. All this called for management of internet access in order to find balance of rights between freedom and public interest.
Digital rights, Ifdhal said, also emerged. In the digital era, the right to information must be placed in the context of changing modes of information acquisition. In addition, information must be seen in correlation with the right to freedom of opinion and expression on the internet. This has led to the demand for the recognition of digital rights, an aspiration to extend fundamental rights—such as the right to freedom of information, freedom of expression, and privacy—to the digital space. The term ‘digital rights’ or ‘rights to the internet’ includes protection of access to the internet.
“The term ‘digital rights’ cannot be used in the human rights international law yet. Jurists agreed that human rights are the implementation of Article 19 paragraph (2) of the ICCPR in the internet. This view is also supported by general comment No. 34, which clearly states that other media also include internet-based communication. It means that the right to information on the internet is under the protection of international human rights instruments in terms of the medium,” he explained.
Ifdhal also believed that human rights that are protected both in international and regional instruments as well as in national constitutions and laws are not absolute. However, some of these protected rights are subject to restrictions for valid reasons and are necessary and reasonable. There are two categories of rights protected by the human rights’ legal regime. The first is absolute rights that cannot be reduced or non-derogable rights. The second is derogable rights, often referred to permissible rights.
In addition, restrictions on conditions are needed to determine whether these restrictions are acceptable and have strong legitimacy. Legitimate purpose is determined by whether or not the prerequisites or conditions needed for the restrictions set out in the limitation clause are met. The terms or conditions needed must be restrictions within the limits of the law.
Restrictions that are provided by the law are in line with the principle of legality. This requires carrying out restrictions with clear laws. The term ‘law’ refers to laws made in the legislative process, or laws in countries that adopt the civil law traditions and the equivalent in those that adopt the common law.
“The universal provisions are not much different from those in our Constitution and national legal system. The 1945 Constitution requires everyone to comply with the restrictions set by law. Likewise, the national legal system states that the rights and freedoms regulated in the law can only be limited by and based on the law,” he added.
In addition, restrictions solely serve to ensure the recognition of and respect for the rights of freedom of others and to fulfill fair demands in accordance with morality, religious values, security, and public order in a democratic society. The national legal system also solely serves to guarantee the recognition of and respect for human rights and the basic freedoms of others, morality, public order, and the public interest. It must be carried out by taking into account professionalism, meaning that the methods used by the state to limit rights is carried out professionally for the desired goal and should not go too far.
Another expert for the Government, Henry Subiakto, also testified at the hearing. He said the focus of regulation and legal restrictions in casu a quo article was to maintain public order related to electronic-based information and cyber media for 202.6 million internet users in Indonesia.
“In Indonesia, there are currently 202.6 million internet users. 170 million are active on social media. Globally, there are 4.6 billion internet users. This data is from the UN and [the Indonesian Internet Providers Association (APJII)]. This creates the era of abundance which, according to Peter Diamandis and Steven Kotler, means that everyone can be active and be a producer of messages and information, whether that person is good or bad. The information can, of course, be good information, bad information, enlightening information, or harmful information, because of all people in Indonesia who can use the internet can produce information. The government as the state administrator acts as a guardian,” Henry explained.
He added that main communication issue in the digital era is not the press, media journalism, or broadcast content, but the unprecedented tsunami of electronic information in cyberspace where information can be created by anyone.
“Millions, hundreds of millions of people in Indonesia, or billions of people in the world, content creators and disseminators, can be educated people, good people, or bad people, terrorists, criminals, political hitmen who want to destroy a country. It can be anyone with any motive, including those who want to weaken [the Unitary State of the Republic of Indonesia (NKRI)],” he said.
Henry believed the EIT Law, were formed to regulate and protect users, including children, and the organizers of the electronic system, not the press. He believed the press was not the object of the EIT Law because it is subject to Law No. 40 of 1999 on the Press. Article 40 paragraphs (2a) and (2b) of the EITLaw are interrelated and also regulate content. Article 40 paragraph (2a) obliges the Government to make decisions in the form of actions or beschikking to protect the public from misuse of electronic information that has unlawful content.
“Quick decisions and actions are needed because there is prevention, which must be fast, not waiting. In order to carry out these obligations, the Government is authorized by the legislature or by this law [especially] Article 40 paragraph (2b) or the a quo article, which reads, ‘In conducting the above prevention, 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,’” he explained.
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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 8/4/2021 15:16 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.
Tuesday, August 03, 2021 | 20:31 WIB 368