Indonesian Constitutional Rights: Expressing and Purposing Opinions on the Internet
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The International Journal of Human Rights ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/fjhr20 Indonesian constitutional rights: expressing and purposing opinions on the internet Zaka Firma Aditya & Sholahuddin Al-Fatih To cite this article: Zaka Firma Aditya & Sholahuddin Al-Fatih (2020): Indonesian constitutional rights: expressing and purposing opinions on the internet, The International Journal of Human Rights, DOI: 10.1080/13642987.2020.1826450 To link to this article: https://doi.org/10.1080/13642987.2020.1826450 Published online: 07 Oct 2020. Submit your article to this journal View related articles View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=fjhr20 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS https://doi.org/10.1080/13642987.2020.1826450 Indonesian constitutional rights: expressing and purposing opinions on the internet Zaka Firma Aditya a and Sholahuddin Al-Fatih b aCenter for Research and Case Analysis, The Constitutional Court of the Republic of Indonesia, Jakarta, Indonesia; bFaculty of Law, Universitas Muhammadiyah Malang, Malang, Indonesia ABSTRACT ARTICLE HISTORY Law Number 11 Year 2008 on Electronic Information Received 2 February 2020 and Transactions (EIT Law) is a law that is often the subject of Accepted 16 September 2020 debate for legal experts in Indonesia. Up to now, more than 20 KEYWORDS court decisions that are related to the EIT Law, especially cases of Constitutional rights; humiliation and defamation involving internet users as regulated freedom of expression; EIT in Article 27 paragraph (3) of the EIT Law. Moreover, the EIT Law Law; information; opinion has so far been nine times tested in the Constitutional Court. However, judicial review of the EIT Law is largely declared rejected, not accepted, and withdrawn. The reason of the Constitutional Court refusal is because Article 27 Paragraph (3) and Article 45 Paragraph (1) of the EIT Law is considered constitutional, as it is in accordance with democratic values, human rights, and the principle of state law. The EIT Law aims to protect people’s privacy in using technology and information. In reality, the EIT Law becomes the most threatening law of criminalisation of the citizen, in which the rights of the community are informed and argued, threatened by allegations of humiliation and defamation. The most commonly armed articles are articles 27 and article 28 of the EIT Law. The revision of Law Number 11 of 2008 on Electronic Information and Transactions (EIT Law) to Law Number 19 of 2016 caused a lot of harsh criticism from human rights acti- vists. Institutions engaged and concern in the protection of human rights such as ELSAM (The Institute for Policy Research and Advocacy), LBH Pers (Press Legal Aid Institute) and ICJR (Institute for Criminal Justice Reform) speak up to criticise the revi- sion of the EIT Law because the norms of the new EIT Law are not considered to differ greatly from the previous EIT Law which often curbed freedom opinion or expression. Firstly, the revision of the EIT Law was directed as a legal norm to improve the Indonesian economy by regulating all transactions in cyberspace (e-commerce). However, as technol- ogy develops on social media, in fact, several articles in the EIT Law are considered detri- mental because quite a number of people are reported to the police and made suspects with allegations of defamation, so that they tend to threaten the freedom of each person to argue. CONTACT Zaka Firma Aditya zaka.fi[email protected] Center for Research and Case Analysis, The Constitutional Court of the Republic of Indonesia, Medan Merdeka Barat street, No 06, Jakarta 10110, Indonesia © 2020 Informa UK Limited, trading as Taylor & Francis Group 2 Z. F. ADITYA AND S. AL-FATIH Duly recognised, that in practice, EIT Law has become a new threat to the protection of civil liberties in Indonesia, especially freedom of opinion and expression. This situation arises mainly due to the formulation of defamation norms in the EIT Law, as regulated in Article 27 paragraph (3), which generalises criminal defamation. According to Amnesty International, from October 2014 to mid-2019 there were at least 241 cases in which people were victims of the EIT Law.1 Interestingly, most convictions are those who are considered ‘hateful’ and ‘insulting’ President Joko Widodo. The number is 82 out of a total of 241 cases or more than one third. In fact, of the total 82, 65 of them were convicted for insulting Joko Widodo on social media. The rest occurs through offline media such as speeches and demonstrations (see note 1 above). As many as 35.92 percent of people who reported cases of the EIT Law were state officials, including regional heads, agency/department heads, and ministers.2 Meanwhile, majority of criminal convictions of expression on social media come from police initiatives that monitor cyber media. In the Freedom House research report entitled Freedom on the Net 2019: The Crisis of Social Media, Indonesia has a score of 51 for freedom of expression online on social media and is still in the yellow zone (partly free) consisting of obstacles to access (score 14), Limits on content (score 19), and violation of User Rights (score 14).3 Even worse, cases of freedom of expression related to the EIT Law turned out to increase from 74 cases during President Susilo Bambang Yudhoyono’s regime (2009–2014) to 241 cases in the Joko Widodo regime (2014–2019), or more than tripled. This is a very worrying condition, because the EIT Law was originally issued as an effort to guarantee legal cer- tainty to information and electronic transactions that emerged together with the demo- cratic situation that developed after the New Order period in Indonesia. However, the practice that occurs, the existing rules actually threaten and potentially suppress freedom of expression. The revision of the EIT Law in 2016 does not necessarily end the threat of freedom of expression. Although the results of the revision have made the rule of no detention during the legal process until the final decision (inkracht) and also the matter of ‘Right to be for- gotten’, which gives the obligation to delete irrelevant Electronic Information that is under his control at the request of the person concerned based on a court decision. However two does not mean anything when looking at the fact that the EIT Law continues to be used as a tool to criminalise someone and continues to threaten freedom of expression in Indonesia. This paper will discuss 3 (three) of the main issues, i.e.: (1) Conceptualisation of Freedom of Expression: An Indonesian Perspective; (2) Overview of Online Freedom of Expression in Indonesia: Its Arrangement and Implementation, and (3) Threats of The Freedom of Expression In The EIT Law Regime: A Case of Indonesia. 1. Conceptualisation of freedom of expression: an Indonesian perspective 1.1. The history of freedom of expression in Indonesia Freedom of expression also known as freedom of speech or opinion. In addition, freedom of expression closely related to another concept called freedom of the pers. Freedom of THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 3 expression includes broader expressions, including freedom of expression through oral, printed or audiovisual material, as well as cultural, artistic and political expressions.4 Freedom of expression is a complex right. So-called because it is not absolute and there- fore must be accompanied by specific duties and responsibilities and must comply with a number of restrictions, in so far as such restriction are established by law and necessary. The right to freedom of expression is also complex because this right protects the right of the speaker as well as the right of the listener.5 These two sides of the same right can some- times be contradictory and difficult to reconcile. Both of these rights sometimes experience tension because it is not always easy to find the right balance between the right to honour, safety and privacy. Freedom of expression is essential for four reasons.6 First, freedom of expression is necessary to guarantee one’s fulfilment and to achieve the maximum potential of a person, especially in expressing his ideas (see note 6 above). Second, for the search for truth and the advancement of knowledge, it means that someone who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by confronting that judgment with the opposite view, and making use of various different throughs as optimal as possible (see note 6 above). Third, freedom of expression is essential so that people can participate in the decision-making process, especially pol- itical decisions (see note 6 above). Fourth, freedom of expression enables society and the state to achieve stability and adaptability (see note 6 above). From the four important above, in Indonesian perspective, it can be illustrated that the short-term suppression of freedom of expression may be carried out by the brutal use of power. Still, this action eventually raises the seeds of instability because society will become rigid and unable to adapt to change. A concrete example is in countries that embrace com- munism like China and North Korea, where the people are given very limited access to explore their expressions. As a result, state life is controlled by the stated and cannot be contested (the government tends to be authoritarian and totalitarian). Proposals and com- munity expression are not channelled, and hence the community will lose critical and innovative abilities and find it difficult to adapt. Freedom of expression is also needed in terms of protecting citizens from corrupt and tyrannical rulers.7 That is, a democratic government requires its citizens to access the per- formance of their government.