Henri Subiakto taking oath before testifying as an expert for the Government at a hearing on the EIT Law, Monday (12/16/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Penalties in the EIT Law are more severe than those in the Criminal Code (KUHP), because the EIT Law regulates the borderless cyber world that is full of destructive contents, whose consequences are far worse than those in the physical world. Thus, in its implementation, it must prioritize penalties for offenses reflecting hatred or hostility to other people, individuals, or society. Therefore, the norms in the EIT Law are lex certa are very clear and are needed by the state to protect diversity and even Article 28 paragraph (2) of the ITE Law prevents dehumanization and protects minority groups from discrimination.
The statement was made by Henri Subiakto 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 Tuesday, December 17, 2024. The session was 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 the 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.
Henri emphasized that in Article 156 of the Criminal Code, the sanctions are more formal, where everything are assessed solely based on the act, regardless of the consequences. However, in this article, the formal and material elements are emphasized, so the arguments in this article are not easily applied in all circumstances. Unfortunately, in everyday life, he continued, this norm is implemented immediately without any consideration for the victim. Whereas, the EIT Law mentions the term “transmitting,” not only “distributing” as in the current digital era, information spread to millions of people through self-to-self communication, where communication is not only conveyed openly in public, but from one person to one person, and the distribution is very wide in spreading incitement or pornography.
“Therefore, the definition of ‘incitement’ in Article 28 paragraph (2) of the EIT Law contains a prohibition on active actions to distribute and transmit, including inviting and triggering personal emotions by targeting people who are different in race, nationality, ethnicity, and others. In this case, it is the minority groups that are protected by the state from violence and discrimination. However, in reality in the field, it applies in reverse. So, the implementation is reversed; it is not that the norm is wrong, but the implementation is inappropriate,” Henri explained.
Protection by the State
Henri said the state has an obligation to protect persons, groups, or communities from incitement and hate speech, because although such speech initially only creates stereotypes, over time it can deprive individuals, especially minority groups, of human rights and even harm their lives. Then, in relation to Article 27A, he said it is clear that the person or party entitled to make a complaint is the one mentioned in the speech, not any legal entity.
Meanwhile, the phrase “a matter” in Article 27A of the EIT Law actually means an alleged act and not an assessment of a person. Meanwhile, the phrase “unlawfully” in Article 28 paragraph (2) of the EIT Law means that the state protects professions, including: first, journalists who are allowed to disseminate information in the form of incitement that contains facts; second, researchers, who are allowed to disseminate an incitement as long as it is related to the object they are researching; and third, law enforcers, who are allowed to disseminate incitement only in the context of a legal investigation. Thus, the definition of the phrase in the norm focuses on protecting certain professions, which also applies in various countries.
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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.
Tuesday, December 17, 2024 | 13:27 WIB 45