House: Criminal Provisions in EIT Law Set Out in Criminal Code
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House Commission III Taufik Basari testifying at the judicial review hearing of the Criminal Code and the EIT Law, Monday (10/9/2023). Photo by MKRI/Ifa.


JAKARTA (MKRI) — The legislators have a new legal policy on criminal provisions in the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law) specified in Law No. 1 of 2003 on the Criminal Code (KUHP). This is based on an evaluation of the application of criminal articles in the EIT Law, public criticism, humanitarian aspects, democratic aspects, criminalization practices, and bad experiences faced by the community.

The statement was made by House of Representatives (DPR) Commission III member Taufik Basari at the fourth material judicial review hearing of Law No. 1 of 1946 on the Criminal Code (KUHP) in conjunction with Law No. 4 of 1976 on the Amendment and Addition to Articles in the Criminal Code Relating to the Expansion of the Applicability of Provisions on Criminal Law, Aviation Crimes, and Crimes against Aviation Facilities/Infrastructure in conjunction with Law No. 27 of 1999 on the Amendment to the Criminal Code Relating to Crimes against State Security (Law No. 1 of 1946); the Criminal Code (KUHP); and the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law) for case No. 78/PUU-XXI/2023. The plenary hearing to hear the House’s and the Government’s testimonies were presided over by Chief Justice Anwar Usman and the other eight constitutional justices.

Taufik said that this legal politics also accommodates several decisions or policies by the government and law enforcement institutions that seek to eliminate the negative impact of inappropriate application of the criminal articles of the EIT Law. He further explained that the legal politics in the national Criminal Code provides boundaries and clarity so as to avoid misapplication of articles, including by providing clarity on the formulation, purpose, and objectives of articles on insult and/or attack on one’s dignity. Several relevant articles, starting from Articles 433 to 441, are given limitations through the elucidation to articles of the national Criminal Code. In addition, the severity of the criminal penalties in the articles is also reduced with various variations with none exceeding 3 years and 6 months, and the aggravation for certain offences, such as a third of the penalty, also does not exceed 4 years and 2 months. Compared to the criminal sentence in Article 27 paragraph (3) of the EIT Law, which is 12 years, the decrease is very significant.

“Based on the legal politics of the establishment of the national KUHP through Law No. 1 of 2023 on the KUHP, there has been a fundamental paradigm shift from the current KUHP and the criminal provisions in the EIT Law to the national KUHP, which will take effect on January 2, 2026. The legal politics of establishment of the national KUHP focuses more on more humane punishment, by applying the restorative justice approach and leaving the retributive justice approach. This is also shown by the regulation of new types of punishment in such as probation and community service for short prison sentences,” he explained.

Taufik continued that there has been a vision of reforming the KUHP, which includes decolonization and democratization, both of which are rooted in the desire to replace colonial laws that do not guarantee the protection of human rights. The KUHP has also embraced strict restrictions related to the protection of freedom of speech, which is reflected in the restriction in the provision on insult for acts carried out in the public interest. In this case, criticism, opinions, and research results on a condition or institution or person/official for the public interest cannot be convicted. Protection of human rights is also ensured through the provisions on the dissemination of false news, where the words “disturbance” was changed to “riot,” where “riot is a condition that causes violence against people or goods carried out by a group of at least 3 (three) people,” so it must occur in the real world, not in social or electronic media.

“The riots must also be a condition that is not made up by certain groups so it is purely the reaction to the broadcast or spread of fake news. Fake news must also be interpreted as information that is intentionally not based on facts or is uncertain or incomplete, and is not the result of an assessment, opinion, evaluation results, or a fact that can be justified,” he explained.

Taufik asserted that as a Law that will be enacted, the national KUHP has consolidated articles that need to be renewed within the KUHP and other laws by the deletion or rearrangement in accordance with the dynamics of community development, as well as the provisions of punishment that apply the principles lex certa and lex scripta and the fulfillment of justice. Thus, the national KUHP is relevant with the a quo petition.

“Based on the paradigm shift in the national KUHP, which becomes the new Indonesian criminal law politics, the House hopes that the Constitutional Court through its constitutional interpretation authority states that the criminal law politics with a new paradigm as the basis for this national KUHP during the transitional period of the enactment of the new KUHP to make it a guideline, reference, and guide for law enforcement officials and judicial bodies in applying criminal articles, including the articles that are the object of the review in casu,” said Taufik.

Human Rights Protection

On behalf of the Government, Masyhudi, an expert staff on Politics, Security, and Law Enforcement of the Attorney General’s Office, said that in order to provide protection to human rights as set forth in Article 28G paragraph (1) of the 1945 Constitution, in accordance with Article 28J paragraph (1) of the 1945 Constitution and Article 27 paragraph (3) of the EIT Law, which prohibits any person from distributing, transmitting, and making accessible electronic information or electronic documents that contain insults or defamation. In other words, Article 27 paragraph (3) of the EIT Law mandates everyone to respect other people’s rights to reputation and dignity, which is basically a legal restriction based on Article 28J paragraph (2) of the 1945 Constitution. The restriction referred to is the restriction of free expression of feelings that violates the dignity of others, through the act of distributing, transmitting, or making accessible content that attacks the honor of others.

“The formulation of criminal provisions in the law is clearly formulated as to what acts are violated and the punishment imposed. The provision of Article 27 paragraph (3) of the EIT Law is a prohibition norm contained in Chapter VII on Prohibited Acts with criminal sanctions formulated in Article 45 paragraph (3) of the EIT Law, which is contained in Chapter XI on Criminal Provisions. Thus, the formulation of Article 27 paragraph (3) of the EIT Law must be read systematically with the criminal provisions of Article 45 paragraph (3) of the EIT Law, which are in accordance with the technical writing of laws and regulations,” Masyhudi said.

Therefore, the Government concluded, Article 27 paragraph (3) and Article 45 paragraph (3) of the EIT Law are not unconstitutional, unlike argued by the Petitioners. Therefore, according to the Government, it is appropriate and very reasonable for the constitutional justices to wisely reject the Petitioners’ arguments. Article 27 paragraph (3) in conjunction with Article 45 paragraph (3) of the EIT Law, which regulates the use of information technology to distribute information or documents containing defamation, is designed with the aim of protecting individual rights and preventing the dissemination of false information in the digital realm.

So, the a quo article as a provision to protect the person’s reputation, dignity and honor as part of the protection of human rights in cyberspace is still needed to maintain order and safety in cyberspace.

“In tracing its compatibility with various articles in the 1945 Constitution, we can see that the provisions in the EIT Law do not conflict with the basic principles of the Constitution of the Republic of Indonesia,” said Masyhudi.

Also read:

Provisions on Defamation against State Officials Challenged

Petitioners of Provisions on Defamation Revise Petition

Hariz Azhar Expresses His Hope to Constitutional Justices

In their petition, Haris Azhar and Fatiah Maulidiyanti (Petitioners I and II) argue that their constitutional rights have been impaired due to the articles being petitioned. They believe those articles have criminalized them, whose work is focused on promoting human rights and the eradication of corruption, collusion, and nepotism (KKN). They also argue that the a quo articles were in fact used to criminalize those who critique of state officials and government policies. Petitioners I and II claimed that law enforcement officials prioritized criminal proceedings against them rather than following up, examining, and adjudicating cases that actually matter.

The Petitioners hoped the Court would accept and grant their provisional petition and order the East Jakarta District Court to stop and postpone the examination of cases No. 202/Pid.Sus/2023/PN Jkt.Tim and No. 203/Pid.Sus/2023/PNJkt.Tim until the Constitutional Court hands down a decision on this case. They also request that the articles petitioned be declared unconstitutional and not legally binding.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : M. Halim
Translator  : Tahlitha Laela/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.


Monday, October 09, 2023 | 15:17 WIB 437