The ruling hearing of the material judicial review of Law No. 19 of 2016 on Electronic Information and Transactions (EIT), Friday (4/14/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) could not grant the material judicial review petition of Law No. 11 of 2008 as amended by Law No. 19 of 2016 on Electronic Information and Transactions (EIT), it declared at a ruling hearing on Friday, April 14, 2023 in the plenary courtroom. The petition No. 25/PUU-XXI/2023 was filed by private-sector employee Tedy Romansa. “[The Court] declares the Petitioner’s petition inadmissible,” said Chief Justice Anwar Usman alongside the other eight constitutional justices.

In its legal considerations, read out by Constitutional Justice Arief Hidayat, the Court asserted that while the petition had followed the format as referred to in Article 31 paragraph (1) of the Constitutional Court Law and Article 10 paragraph (2) of the Constitutional Court Regulation (PMK) No. 2 of 2021, the Petitioner did not elaborate the reason or legal argument in the background of the petition (posita) why Article 27 paragraph (3) and Article 45 paragraph (3) of the EIT Law was in contrast with articles in the 1945 Constitution used as touchstones.

“Rather, the Petitioner explained the Joint Decrees 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 Articles in Law No. 11 of 2008 on Electronic Information and Transactions as amended by Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions, which law enforcement apparatuses use to process all offenses relating to the a quo article. Aside from being vague, the elaboration also caused inconsistency between the posita and the petitum,” Justice Arief said.

He added that at the preliminary hearing on March 16, the Court had advised the Petitioner to consider the appropriate petitum to avoid legal vacuum.

The Court asserted that the Petitioner’s petitum was vague or at least did not follow the standard petitum for judicial review. The petitum was confirmed by the Petitioner at the petition revision hearing on March 29. Formally, such a petitum is not meant by Article 10 paragraph (2) letter D of PMK No. 2 of 2021.

Therefore, based on the aforementioned legal consideration, although the Court was authorized to rule on the petition and the Petitioner had legal standing, due to inconsistency between the posita and the petitum and the petitum was unusual, the petition had become obscure. therefore, the petition did not meet the formal requirements as referred to in Article 31 paragraph (1) of the Constitutional Court Law and Article 10 paragraph (2) of PMK No. 2 of 2021. As such, the Court did not consider the petition further.

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The Petitioner challenged 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).”

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 felt he 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.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayudhita
Translator  : Yuniar Widiastuti (NL)

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.

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