Herlambang Perdana Wiratraman testifying as an expert for the Petitioners at a hearing on the EIT Law, Thursday (12/5/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Digital rights are human rights that are not only normatively regulated in legal provisions as along the development of human civilization, the constitutionalization of digital justice is inevitable. The rapidly-changing digital world affects the daily lives of citizens/nations in the world. So, its regulation must consider the protection of basic rights and balance of power in the digital environment by ensuring the rule of law as a basic principle for a new civilization in humanity.
The statement was made by Herlambang Perdana Wiratraman at a material judicial review hearing of Law No. 1 of 2024 on the Second Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (EIT) on Thursday, December 5, 2024. The session had been to examine two cases: No. 105/PUU-XXII/2024, petitioned by Daniel Frits Maurits Tangkilisan, and No. 115/PUU-XXII/2024, filed by Jovi Andrea Bachtiar (a prosecutor of the Prosecution Office of the Republic of Indonesia). The Petitioner of case No. 105/PUU-XXII/2024 presented chairman of Gadjah Mada University’s Center for Law and Social Justice (CLSJ) to testify as an expert in relation to the judicial review of Article 27A in conjunction with Article 45 paragraph (4) and Article 28 paragraph (2) in conjunction with Article 45A paragraph (2) of the EIT Law of 2024.
Herlambang further explained that the constitutionalism of digital justice represents the connection between the new constitutional narrative, social justice issues, and the digital transformation that have bled into society. So, to ensure the validity of the 2024 EIT Law so that this normative norm is not easily misused and becomes a catchall article, the Court must provide clear interpretation of Article 27A in conjunction with Article 45 paragraph (4) of the 2024 EIT Law by applying the standard of interpretation based on the Siracusa Principles, which state that restrictions on human rights must meet standards of legality, necessity, and proportionality. Such restrictions are intended to ensure that the criminal provision of “defamation through electronic media” is not misapplied or misused in democracy.
Herlambang stressed that, as such, Article 27A of the 2024 EIT Law is unconstitutional if not interpreted as: “Any person intentionally maligns the honor or reputation of another person, except corporations, government institutions, groups of individuals, public officials, and/or public figures, by alleging they have committed an act, with the intention to publicize it in the form of electronic information and/or electronic documents carried out through an electronic system.” This, he said, has essentially excluded five subjects on the implementation of the article on defamation: corporations, government institutions, groups of individuals, public officials, and/or public figures. With more details in Article 28A paragraph (2) of the 2024 EIT Law, the evidentiary process is more stringent and targeted, with the intent as contained in the legal provisions of the International Covenant on Civil and Political Rights (ICCPR) relating to prohibited hate speech.
“Deleting the phrases ‘and without any right’ and ‘and/or transmitted’ and adding the phrase ‘constitutes incitement to discriminate, be hostile, or commit violence’ is an attempt to qualify the use of the article on ‘hate speech’ in accordance with international human rights law standards. By detailing the words in Article 28A paragraph (2) of the 2024 EIT Law, the evidentiary process becomes more stringent and targeted, with the intent as contained in the (ICCPR) relating to prohibited hate speech,” Herlambang explained at the hearing presided over by Chief Justice Suhartoyo and the other constitutional justices in the plenary courtroom.
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The case No. 105/PUU-XXII/2024 was filed by Daniel Frits Maurits Tangkilisan. At the preliminary hearing on Monday, August 26, the Petitioner’s legal team explained that the Petitioner is an environmental activist and a member of the Kawal Indonesia Lestari Coalition (Kawali) who fights for, preserves, and promotes awareness of environmental protection through contents or materials on various social media platforms.
He feels that he has become a victim of the catchall implementation of the EIT Law. A video he had uploaded on his Facebook page showing the pollution of one of the beaches in Karimunjawa garnered strong reactions.
The Petitioner’s statement was not directed at a particular person nor was it intended to incite hatred on the basis of ethnicity, religion, race, and group. However, he was subjected to legal proceedings and arrest. He was charged with a violation of: (i) Article 45A paragraph (2) in conjunction with Article 28 paragraph (2); or (ii) Article 45 paragraph (3) in conjunction with Article 27(3) of the 2016 EIT Law. Thus, he believes his constitutional rights had clearly been violated.
The Jepara District Court found the Petitioner guilty under the old EIT Law (of 2016). In May 2024, the Semarang High Court acquitted him, but the public prosecutor filed an appeal against the Decision No. 374.PID.SUS/2024/PT SMG. He feared that this could potentially led to him being charged with the new EIT Law (2024). Therefore, he has legal standing in submitting this case to the Constitutional Court.
“The Petitioner believes Article 27A in conjunction with Article 45 paragraph (4) of the EIT Law, especially the phrase ‘other people’, does not provide legal certainty. The definition of ‘victims’ is very broad, so anyone can become the object of complaint. For this reason, it is necessary to limit its interpretation as manifested in Law No. 1 of 2023 on the Criminal Code (KUHP 2023),” said legal counsel Damian Agata Yuvens.
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Meanwhile, case No. 115/PUU-XXII/2024 was filed by Jovi Andrea Bachtiar, a prosecutor of the Prosecution Office of the Republic of Indonesia. At the preliminary hearing on Tuesday, September 3, the Petitioner’s legal team explained that the Petitioner had been reported to the South Tapanuli precinct for his critic against state administrators on social media, where he had accused them of abuse of power and arbitrary use of state facilities. He was then reported and detained at the South Tapanuli precinct. He believes that the state civil apparatus’ (ASN) resistance to criticism is a logical consequence of the ambiguity of the interpretation of the phrase “in the public interest” in Article 310 paragraph (3) of the Criminal Code and the phrase “for public interest” in Article 45 paragraph (7) of the EIT Law.
The Petitioner believes the articles could be used to criminalize people for expressing criticizing state administrators, just as the Petitioner was. He argues that they are in violation of Article 1 paragraph (2), Article 28E paragraph (3), and Article 28F of the 1945 Constitution.
Therefore, the Petitioner appeals to the Court to declare the phrase ‘in the public interest’ in Article 310 paragraph (3) of the Criminal Code unconstitutional if not interpreted to include ‘any criticism against the government, criticism against state administrators so that they would not abuse power or act arbitrarily against the community, and criticism so that state administrators would not use state facilities arbitrarily, let alone without any right [to do so].’ So, Article 310 paragraph (3) of the Criminal Code [should] change to ‘shall not constitute slander or libel if the action is clearly taken for self-defense or in the public interest, such as criticism against government policies, criticism against state administrators so that they would not abuse power or act arbitrarily against the community, and criticism so that state administrators would not use state facilities arbitrarily or without right.”
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Author : Sri Pujianti
Editor : N. Rosi
PR : Fauzan F.
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.
Thursday, December 05, 2024 | 14:57 WIB 52