Thursday, March 16, 2023 | 14:33 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of Law No. 11 of 2008 as amended by Law No. 19 of 2016 on Electronic Information and Transactions (EIT) on Thursday, March 16, 2023 in the panel courtroom. The petition No. 25/PUU-XXI/2023 was filed by private-sector employee Tedy Romansa.
The Petitioner challenges Article 27 paragraph (3) and Article 45 paragraph (3) of the EIT Law. Article 27 paragraph (3) reads, “No Person shall intentionally and unauthorizedly distribute and/or transmit and/or cause to be accessible Electronic Information and/or Electronic Records with contents of affronts and/or defamation.” Article 45 paragraph (3) reads “Any Person who intentionally and unauthorizedly distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents of affronts or defamation as referred to in Article 27 section (3) shall be sentenced to imprisonment of at most 4 (four) years and/or a fine of at most Rp750,000,000 (seven hundred fifty million rupiah).”
Before the panel chaired by Constitutional Justice Arief Hidayat, the Petitioner’s legal counsel Irfandi said the Petitioner’s mother, Karsah, had entrusted 200 million rupiah in cash to Dadang Kurniadi on June 23, 2022 to buy a land and house in Ciomas based on a receipt dated July 18, 2022.
“The purchase of land and house using Mrs. Karsah money that Mr. Dadang Kurniadi promised did not happen. He even claimed that the 200 million rupiah had been gone from the car trunk and until today it has not been returned to Mrs. Karsah. Mr. Dadang Kurniadi has not made any report to the police, citing ambiguous and insensible reasons,” Irfandi said.
The Petitioner was summoned by the criminal detective unit (Satreskrim) of Kuningan police precinct on February 18, 2023 based on Letter No. B/103/II/2023/Reskrim dated February 16, 2023. He then came with his legal counsel, who had discussed with the investigators about the Joint Decree of the Minister of Communication and Informatics, Attorney General, and Police Chief No. 229 of 2021, No. 154 of 2021, and No. KB/2/VI/2021 on Guidelines on Certain Article in Law No. 19 of 2016.
Those provisions had been disregarded and the defamation complaint lodged against the Petitioner continued when he had merely received a recording and forwarded it to a relative privately, not in a group chat. Meanwhile, letter k on Implementation in the Joint Decree reads, “It shall not be an offense of insult and/or defamation in the event that the content is distributed by means of closed or limited conversation such as family conversation groups, close friendship groups, professional groups, office groups, or educational institution groups.” “Why did the law enforcement disregard this regulation? Because they only saw that the a quo articles that the Petitioner challenges were still in effect and had not been declared not binding and unconstitutional by the Constitutional Court,” Irfandi said.
He argued that the EIT Law had many catchall articles, which should be amended so they would not jeopardize justice and truth as referred to in the 1945 Constitution. The Petitioner did not obtain guarantee and legal certainty due to the enactment of Article 27 paragraph (3) and Article 45 paragraph (3) of the EIT Law. The Petitioner believe there should be clear definitions of defamation that the law enforcement can use to process any crime related to the a quo articles, thus, they have violated the purpose of the EIT Law. Therefore, the Petitioner emphasized that both articles are in violation of Article 28D paragraph (1) of the 1945 Constitution, which ensures that everyone is entitled to fair legal recognition, certainty, protection, and assurance and equal treatment before the law.
“Due to the enactment of the articles, the Petitioner has been summoned by the Kuningan police precinct for testimony related to an alleged violation of those article, which are ambiguous and should have been clarified in a law or other legal provisions such as implementing regulations,” he said.
Irfandi alleged that the articles, being catchall, not only impact the Petitioner, but also the general public, not to mention that the EIT Law has been the President’s, the Government’s, and the Police Chief’s focus. The President had given a directive to the Chief Police, who then issued Circular Letter No. SE/2/11/2021 on Ethics Awareness to support a clean, healthy, and productive digital ecosystem. Therefore, in his petitum, the Petitioner requested that the articles in question be declared unconstitutional.
Justices’ Advice
Constitutional Justice Manahan M. P. Sitompul offered advice on the Petitioner’s legal standing. “You could have first explained a, b, c, d, e, whether they are constitutional rights specifically granted by the Constitution, so there is allegation that the Petitioner’s constitutional rights had been violated. Then, explain whether the loss is specific or not, and whether it is actual or at least potential. I read that this started with a concrete case. Explain that and connect it with this. Where is the legal standing? Please explain whether the Petitioner suffered a loss and why. Because he was accused due to these articles or was he just summoned as a witness?” he asked.
Meanwhile, Constitutional Justice M. Guntur Hamzah asked the Petitioner to add the Constitutional Court Regulation (PMK) No. 2 of 2021 relating to the Court’s authority and to elaborate his legal standing. “I observed that your argument on legal standing, the concrete matters that you explained in the background should be moved to the explanation on legal standing. You only mentioned Articles 28I, 28G, and 28J (of 45) without elaborating what Constitutional Justice Manahan M. P. Sitompul explained earlier. The background to the petition must be explained, while your concrete case should be used to argue legal standing,” he said.
Similarly, Constitutional Justice Arief Hidayat asked the Petitioner to explain his legal standing and strengthen his arguments to convince the Court. “For the petitum, the Petitioner should reconsider that if [the articles] are declared unconstitutional, what if there is legal vacuum? [The Petitioner can ask that they be declared] conditionally constitutional or conditionally unconstitutional,” he said.
Before the session was adjourned, the panel gave the Petitioner 14 workdays to submit the revised petition by Wednesday, March 29 at 13:00 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/20/2023 09:04 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.
Thursday, March 16, 2023 | 14:33 WIB 283