Petitioner Gugum Ridho Putra in the Ruling Hearing, Thursday (2/1). Photo by MK/Bayu
JAKARTA, MKRI – Excessive engineering or manipulation in the case of photos/pictures of election candidates that are retouched and manipulated excessively with the help of artificial engineering (AI) technology imposes legal uncertainty and is incompatible with the principles of free, honest, and fair election. This is due to the fact that misleading information may impair the voters' loyalty to the candidates. Besides, such practices may disturb the voter's ability to make informed decisions, thus damaging the individual voters and compromising the quality of democracy.
Such is the legal consideration of the Court read by Deputy Chief Justice Said Isra for Decision No. 166/PUU-XXI/2023. The petition to review Law No. 7 of 2017 on General Elections (General Election Law) was filed by Gugum Ridho Putra. The Ruling Hearing was held on Thursday, January 2, 2025, in the Plenary Courtroom.
Furthermore, Deputy Chief Justice Saldi Isra added that according to the Court, citizens possessing the right to vote in elections should be guaranteed to obtain the correct information, whether in presidential, legislative, or regional elections, as guaranteed in Article 28F of the Constitution. Furthermore, the Petitioner's right to exercise his right to vote in an objective and fair election is also guaranteed by the provisions of Article 22E paragraph (1) of the 1945 Constitution of the Republic of Indonesia.
“Thus, the Court is of the opinion that as for the norms of Article 1 point 35 of the General Election Law, the phrase 'personal image' relating to photos/pictures of election participants must be interpreted conditionally by requiring election participants to display photos/pictures of themselves that are original and up-to-date and without being excessively engineered/manipulated with the help of artificial intelligence technology. Based on these legal considerations, the Court considers the Petitioner's petition regarding the phrase 'personal image' in the norms of Article 1 point 35 of the General Election Law to be unconstitutional is well-founded according to law. However, because the interpretation made by the Court on norms of the a quo article is not as argued by the Petitioner, the Petitioner's petition regarding Article 1 number 35 of the Election Law is legally grounded in part,” said Deputy Chief Justice Saldi.
Formulating New Norm
As for the argument of Article 274 paragraph (1) of the General Election Law, the Court considers that the definition of campaign as considered by the phrase “personal image” is part of the definition of campaign that has been conditionally interpreted in Article 1 point 35 of the General Election Law. Hence, if there are other norms that are affected, their enforcement is adjusted. As a juridical consequence, if Article 274 paragraph (1) of the General Election Law is affected, then there is no relevance for the Court to consider further regarding the unconstitutionality of the article. Moreover, if the Petitioner's wishes are accommodated in the article with regard to campaign material, including the phrase “personal image” of election participants in the form of serial numbers, photos/pictures, votes, combined photos/pictures, and the latest votes of candidate pairs for candidates for House of Representatives, Regional Advisory Council, Provincial/Regency/City Legislative Bodies without digital manipulation, then it is the same as the Court formulating new norms.
Expression of Political Views
Furthermore, the Court provides legal considerations in relation to the arguments of Article 280 paragraph (2), Article 281 paragraph (1), and Article 299 paragraph (1) of the General Election Law, which according to the Petitioner, relates to the uncertainty of the norm in its absence of ban against the president, vice president, ministers, governors who are related by consanguinity or by marriage up to the third degree in participating in the campaign with election participants. The principles of direct, public, free, confidential, honest, and fair election as mandated by the 1945 Constitution of the Republic of Indonesia is not a static concept but rather dynamic and can be adapted in accordance with the social, political, and technological development context.
These principles should be understood as a general guide in organizing elections and not as a basis for overriding the political rights of public officials as citizens. Elections, which are held periodically every five years, do not mean that the participation of public officials in election campaigns should be prohibited entirely. This is because freedom and honesty in elections include freedom and honesty for public officials to express their political views as long as it is done in an ethical manner and does not abuse authority or state resources.
“The Court considers that the General Election Law has provided a mechanism to ensure public officials not to abuse their positions or state facilities in election campaigns. State officials who participate in election campaigns must fulfill the provisions of laws and regulations. Therefore, the participation of public officials in political activities including in campaigns is a manifestation of the constitutional rights of citizens as long as it is carried out in accordance with applicable provisions. Thus, in the context of the campaign, so long as not prohibited by the provisions of the law, then the public official is allowed to do it,” said Deputy Chief Justice Saldi.
Legal Uncertainty
Furthermore, the Court provides legal considerations regarding the campaign ban against the president, vice president, governors, and vice governors who are related by consanguinity or by marriage up to the third degree to participate in the campaign with election participants. This results in restrictions on the right to freedom of opinion, expression, and participation in political activities as the right of citizens. Substantially, the Petitioner's request is also difficult to implement because tracing the existence of family relationships to participate in campaigns with election participants by election organizers is not feasible and instead creates legal uncertainty.
“Based on these legal considerations, according to the Court, the arguments of the petition regarding the unconstitutionality of the norms of Article 280 paragraph (2), Article 281 paragraph (1), and Article 299 paragraph (1) of the Election Law has no legal grounds,” Deputy Chief Justice Saldi said.
For that reason, in the verdict read out by Chief Justice Suhartoyo, the Court partially granted the Petitioner's petition.
“[The Court] ruled that the phrase “personal image” relating to photos/pictures in Article 1 point 35 of Law No. 7 of 2017 on General Election is in conflict with the 1945 Constitution of the Republic of Indonesia and does not have binding legal force as long as it is not interpreted as “photos/pictures of themselves that are original and up-to-date and without being excessively engineered/manipulated with the help of artificial intelligence technology,” Chief Justice Suhartoyo said.
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At the preliminary hearing on Thursday, December 21, 2023, the Petitioner argued there is a legal vacuum in the provisions on a campaign for the upcoming 2024 election amid the potential for conflicts, TSM (structured, systematic, and massive) violations, and non-restriction of personal image. He stated that the president, vice president, ministers, governors, deputy governors, regents, deputy regents, mayors, and deputy mayors should be banned from campaigning for their family members who run for election. This is regulated in Article 22E paragraph (1) of the 1945 Constitution, which requires elections to be held freely, honestly, and fairly.
He argued that allowing them to campaign for family members who run for election contradicts the principle of free, honest, and fair elections. The physical presence of these officials would send a strong non-verbal order to the public, indirectly urging the entire community to participate in the election and support their family members involved in the election.
The Petitioner also questions the absence of prohibition for election participants on using personal images in the form of photos/images, sounds, combined photos/images and sounds with digital manipulation, creation, alteration, digital removal, or artificial intelligence (AI) technology are considered as if they were authentic personal images. Through technological advances, election participants can exaggerate their image beyond the actual situation. The absence of prohibition can cause misinformation among voters, potentially manipulating their perceptions of candidates and leading them to use their voting rights in misguided voting. He explained that the General Election Law has not regulated the personal image of election participants that will be used in campaign materials. Restrictions on the use of digital technology, including AI, have also not been regulated. As a result, election participants can freely polish their images without restrictions.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Raisa Ayuditha M.
Translators : Muhammad Hafidh Al Mukmin/Rizky Kurnia Chaesario (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, January 02, 2025 | 17:22 WIB 207