Chief Justice Anwar Usman chairing the judicial review hearing for case No. 81/PUU-XVIII/2020, Wednesday (10/27/2021) in the plenary courtroom. Photo by Humas MK/Panji.
Wednesday, October 27, 2021 | 22:47 WIB
JAKARTA, Public Relations—The provision on the Government’s authority to restrict electronic system access as referred to 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) was not unconstitutional, ruled the Constitutional Court (MK) for case No. 81/PUU-XVIII/2020 at a virtual ruling hearing on Wednesday, October 27, 2021 in the plenary courtroom.
Suara Papua editor-in-chief and chairman of the Alliance of the Independent Journalists (AJI) Arnoldus Belau and AJI had stated that they felt disadvantaged due to the Government’s authority as stipulated in Article 40 paragraph (2b) of the EIT Law, which gave 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 believed such an authority belonged 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. They asserted that the Government’s authority to arbitrarily interpret whether electronic information and/or documents had unlawful content was against the principle of due process of law. 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.
Also read: Suara Papua and AJI Challenge EIT Law
In its legal considerations read out by Constitutional Justice Enny Nurbaningsih, the Court asserted that the internet, which is at the forefront of today’s EIT, is a digital communication media that can involve anyone through which dissemination of electronic information and/or documents occur rapidly, broadly, and massively transcending space and time.
She added that if any electronic information and/or document with unlawful content is accessed before the restriction, there will be rapid and massive negative impacts that could reasonably lead to noise, unrest and/or public disturbance. Therefore, the Government must immediately and precisely take precautions by restricting access to the information and/or document.
“That is because the internet’s virtual nature allows for massive, destructive, illegal, unlawful content to spread rapidly anywhere, whenever, and to whomever. Therefore, the Government’s role in safeguarding and limiting cyber traffic is imperative, given the characteristic of the internet that could easily bring negative impacts to the public,” Justice Enny said.
Also read: Govt: Citizens Can File Administrative Complaint against Content Restriction
Therefore, she added, it is impossible for the Government to issue a KTUN (state administrative decision) in writing beforehand, as requested by the Petitioners in the petitum. That is because a KTUN cannot be issued faster than the spread of the electronic information and/or document containing unlawful, content especially when the spread occurs within private communication.
“Therefore, in the context of the Petitioners’ a quo petition, who did not actually request that the Court eliminate Article 40 paragraph (2b) of Law No. 19 of 2016 but that interpret it by adding the phrase ‘after issuing a written administrative decision or state administrative decision,’” Justice Enny said.
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Digital Notification
The Court also asserted that the restriction by the Government did not necessarily eliminate the Petitioners’ constitutional right to communicate and obtain information. However, the exercise of the right should not eliminate the state’s right to swiftly protect public interest, especially children, from the danger of information containing illegal content. Moreover, the Government’s action can be subjected to legal process in accordance with statutory laws and regulations, so that the Petitioners’ constitutional right to communicate and obtain information is guaranteed.
The Court believes that the Government may give a digital notification for the restriction to illegal content, which guarantees transparency and meets the general principles of good governance (AUPB).
“However, based on the above considerations, the Court believes there is no constitutionality issue in Article 40 paragraph (2b) of Law No. 19 of 2016 regarding the right communicate and obtain information as guaranteed by Article 28F of the 1945 Constitution, thus the Petitioners’ argument that the a quo article was unconstitutional was legally unwarranted,” Justice Enny stressed.
Also read: Regulations of Internet Access Restriction Necessary
Normalization Procedure
Continuing with the Court’s opinion, Constitutional Justice Daniel Yusmic P. Foekh said that in exercising its authority pursuant to 40 paragraph (2b) of Law No. 19 of 2016, the Government had provided a legal basis, a legal product, the procedure for access restriction to electronic information and/or document with unlawful content, and its normalization procedure.
“Therefore, what the Petitioners were concerned about regarding the Government’s access restriction to electronic information and/or document would not happen, because the act is only carried out in case of unlawful content, which is exemplified in the Elucidation to Article 96 letter a of Government Regulation (PP) No. 71 of 2019,” Justice Foekh said.
Thus, he added, in this case the state is obligated to interfere to protect public interest from any disturbance due to abuse of content in electronic information and/or documents. There is also procedure to normalize or rehabilitate access restriction so that all stakeholders’ rights and obligations in using electronic information and/or documents remain balanced, as should be in a law-based state.
“Therefore, the Petitioners’ argument on the conflict between Article 40 paragraph (2b) of Law No. 19 of 2016 and the principle of a law-based state as referred to in Article 1 paragraph (3) of the 1945 Constitution was legally unwarranted,” Justice Foekh stressed.
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Dissenting Opinion
Constitutional Justices Suhartoyo and Saldi Isra expressed a dissenting opinion. They believe the Petitioners’ petition should be granted in part because Article 40 paragraph (2b) of the EIT Law doesn’t regulate the procedure that the Government must follow in restricting access to information and/or ordering such restriction when, in fact, the authority that the norm granted the Government is reasonably related to or impact the restriction of human rights or the citizens’ constitutional rights. As such, it should have been regulated clearly. In this case, the norm should have been able to provide certainty over the procedure to restrict those rights so that the citizens or entities affected understand the Government’s rationale in deciding on and/or implementing such restriction.
Reading out the opinion, Justice Saldi said that the legal construct that mandates a clear provision on the procedure for restriction of access to information by the Government and it must become part of government ethics. There should also be checks and balances to prevent the increasing abuse of power as power tends to corrupt, absolute power corrupts absolutely.
Also read: Ifdhal Kasim: Internet Abuse Pollutes Public Spaces
Notification
In that context, Justice Saldi said, the Government must be mandated to use its authorities in a clear and accountable legal construct by publishing a written explanation of the exercise of the authorities. Such an obligation does not necessarily have to be a KTUN as the Petitioners requested, but could be a written announcement through letter or digital notification sent to users of electronic information.
“This is because if there is mandatory announcement as the Petitioners requested in the petitum, such acts or decisions by the Government can be reviewed through the state administrative court as they are acts and decisions. If the a quo norm is interpreted following the Petitioners’ request, it could restrict the opportunity for Government ‘acts’ in state administration,” Justice Saldi explained.
The Court believes that the Petitioners did not intend to eliminate the Government’s authority to restrict access and/or order electronic system providers to do so over electronic information and/or documents containing unlawful content as referred to in the a quo norm. This means the Petitioners were aware that the Government’s authority was necessary in controlling electronic information and/or documents containing unlawful content, but required that the rationale of restriction of access to such information and/or documents be explained in writing by to users.
“Considering that based on the aforementioned considerations, in order to develop and maintain ethics in the administration of government, to exercise checks and balances, and to realize fair legal certainty in a democratic law-based state, the Court should declare Article 40 paragraph (2b) constitutional insofar as interpreted as, ‘To so prevent as referred to in paragraph (2a), the Government shall have the power to block access to and/or order Electronic System Providers to block access to Electronic Information and/or Electronic Documents with unlawful content after issuing or attaching a written/digital explanation,’” Justice Saldi stressed.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/29/2021 14:33 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Wednesday, October 27, 2021 | 22:47 WIB 215