ICJR: Restricting Negative Contents Should be in Accordance with Law Procedures

Analysis    | 13 Aug 2018 | Read 342 times
ICJR: Restricting Negative Contents Should be in Accordance with Law Procedures

In 2004, The Indonesian Ministry of Communication and Information (Kominfo) issued Ministerial Regulations (Peraturan Menteri) No. 19 Year 2014 dealing with abroad of sites containing negative content, namely pornography. Within this regulation, the ministry entitles to run the procedures to ban the sites which indicate the negativity.

However, the implementation seems to be impractical from the official laws since The Indonesian Ministry of Communication and Information poses a legal power to govern and run the laws. It is seen by plenty of people as a concrete violation of civil rights done by a country to the inhabitants.

One side that is against to that violation is Institute for Criminal Justice Reform (ICJR). Initially, ICJR is an organization which concerns on issues related to civil rights in Indonesia. In 2005, ICJR has proposed a claim regarding the ministerial laws to supreme court. In this case, Friday, July 13 in 2018, Adinda Tenriangke Muchtar (Managing Director) and Haikal Kurniawan (Contributor) from Suara Kebebasan, have interviewed the Executive Director of ICJR, Anggara Suwaju in his office, Pasar Minggu area, South Jakarta.

 

Good evening, Mr. Anggara. Thank you for this opportunity. We would like to begin the interview by asking you about a claim in regard to the ministerial laws issued by The Indonesian Ministry of Communication and Information, pointing out about the ban of negativity in related sites done by ICJR to supreme court. How about the process, sir?

The judicial review from supreme court based on laws of supreme court should be prevented if one of the materials is being analysed by supreme court. The criminal code as one of the materials to make a legal claim to the ministerial regulation is used to be reviewed in constitutional court. Hence, the approval by supreme court cannot be conceded. As the criminal code being reviewed by constitutional court, even though the criminal code it has conducted each year by the constitutional court, the claim is not denied but unacceptable due to the technical problems.

It seems that the minister of Indonesian Ministry of Communication and Information is being honoured. However, in Tifatul's (previous minister) administration, there are many colleagues denied that ministerial regulations, and it was believed that it was because of Tifatul's characters, not the regulations itself. As the minister being shifted, they who refuted previously consider that there is no issue although the core topic is still the same.

In terms of law, copyright is something which is close to us. Thus, it cannot be arbitrarily carried by the government. However, it is admitted within two conditions, either what is administered on constitution or what is ordered by judicial institution.

In terms of restriction, the question is about either the access of the internet includes the copyright or not. According to us, this is undeniable since people can purchase and pay for the access unless if the access is not on public space and free, the government can constrain this.

The copyright could not arbitrarily be justified, and if the penal laws is stated as a foreclose, this must be beneath the court. The question is about various things regarding the foreclose or restriction, in a considerate perspective, any criminal should be decided by the constitution, like pornography and child pornography. Therefore, any foreclose or restriction is possible to be done.

Furthermore, the context should be clear related to violation. As an illustration, what is the negativity of Tik-Tok to be banned. Then, nowadays, the official site of Vatican, Vatican News is recently banned as well. The question is about the person who proposes and investigates if the term of penal law is clear, the whistle-blower, the investigator, and the commander should be different. Take an example, who do the investigation should be the investigator, and then the commander should be the judge in which the authorization is hence equal.

In case of The Indonesian Ministry of Information and Communication, all of the procedures such as investigation and judgement are done by the government. In short, all of authorities are in one hand. This means hazards if someone abuses and the government is shifted by the repressive one. How about that?

The problem is there are group of people who are reluctant with a court since they think the court is a complex problem. Like how if the defendant is on abroad or anonym. Laws do not provide a set of regulations in order to investigate the uncertain criminals. In this case, the whistle-blower can propose the temporary prohibition for the site to the court. That does not need an application or website for one demand, but just one is for 10 or 100 websites with revealing the background. If the background is clear, the permission cannot be refuted by the court.

Administration seems surely complicated, but there is another pivotal aspect like justice. If processing through penal law is clear and who is the whistle-bowler, the investigator and the commander, the procedure seems to be uncertain and not transparent.

There is a host of activists from non-government organizations has a different insight. From ELSAM for instance, this should involve an independent institution like National Commission of Human Rights (Komnas HAM). The importance is check and balance should be available to distribute the legal power. ICJR makes a claim is not supporting the pornography, but in order to highlight that the way of the ministry acts possibly trigger to the repressive regime.

 

In this case, the government regularly state that if a claim proposed is just a procedural term and if the defendant is not a solo player, but they are also complained by the society and it does not break the law of freedom as it has been managed by laws of electronic information and transactions (ITE Law) and Anti-Pornography Law.

 

However, one thing forgotten is the government ordinance is frequently issued prior to the constitution, like the constitution of copyright in 2014. For instance, The Indonesian Ministry of Communication and Information as a representative of the government has issued the government ordinance to constrain the site before establishing the constitution of copyright about the restriction within the ministerial regulations.

Based on amendment of laws of electronic information and transactions (UU ITE), the government ordinance about restriction is included. In one case, if the government argues what is being trouble only about the procedure, the criminal code is better to be removed and the arrest is appropriate done by the police.

Due to this, it sounds really principal. The copyright, right to the property, is fundamental. However, it does not mean people can do what they want to share. This will burden the government in order to deal with the hoax. This is particularly difficult if the content is about politics like people use to do. If the content is about laws, seemingly people will instantly get to the court and the law is stronger.

Running abroad of laws within a law order is fairly simple. It only needs to list and sort the sites to be banned and insert the reason to the court. If the owner of the site is hardly to be met in case living overseas, it can be done unless there is a rule within this case. The ministry can acknowledge to the court if the owner cannot go into trial although they have received any letter to get to trial, hence the site can be blocked temporarily.

 

In your opinion, Mr. Anggara, not only does it include to the ministerial regulations, but also it contains the on-going regulations with several problems inside, how do the society and the country, both legislative and executive apparatuses, take apart on freedom of expression?

People have lived within the freedom which is temporary roughly between 1945 and 1957. After this period, the regime was shifted to be the recessive one up to 1998. So that, there are plethora of people are unfamiliar with the freedom and assume that our freedom is far from the real one, albeit it is not. It is because this perception truly pinpoints that we are being confused about how to regulate this freedom.

As this notion goes far, the government enacts the penal law to preserve social order. There is a good law in this world in which, however, there is a sane law and insane. It seems that there are still abroad of penal laws which are wrongly issued due to the lack of the government to cope with this instant freedom.

Penal laws seemingly have a repressive character and not viable because the function aims to preserve the social order. As being mentioned before, it is surely that a half of penal laws are in trouble, but the problem is when all intentions are formed to become the penal laws.

 

How about the site contains extremism? Does the government entitle to take apart in this issue?

Related to the extremism, it should be differed from either extremism or radicalism. Extremism can lead people to be anarchist. If this is just a radicalism, it is obvious that there are a group of people with radical views, like underground societies who have radical views. If people agree with the radical views should be constrained, so that it is danger. The extremism can lead to anarchism which have to be tackled.

On the other hand, another problem is that the extremism is never dealt with. Rizieq Shihab as an example of who speaks to be anarchist has never been tackled. In worse case, there is a legal action, but it only takes a minor case related to his lust. This points out that the government is still being afraid of. In my thoughtful view, it is better to arrest him in a few years ago. If his subordinates guide people to murder, this situation is undoubtedly a significant action. In different case, if the commander of that murder is Rizieq Shihab, it is untouchable. A leader of an organization like him should be imprisoned.

 

Well, Mr. Anggara, thank you very much for your time.

It is my pleasure. Thank you for the chance of this interview.

Haikal Kurniawan

Haikal Kurniawan adalah kontributor tetap Suara Kebebasan yang merupakan alumni dari Fakultas Ilmu Sosial dan Ilmu Politik, Jurusan Ilmu Politik, Universitas Indonesia. Haikal menyelesaikan studinya di Universitas Indonesia pada tahun 2018 dengan judul skripsi "Warisan Politik Ronald Reagan Untuk Partai Republik Amerika Serikat (2001-2016)."

Selain menjadi penulis di Suara Kebebasan, Haikal juga aktif dalam beberapa organisasi libertarian lainnya. Diantaranya adalah menjadi anggota Charter Teams organisasi mahasiswa libertarian, Students for Liberty sejak tahun 2015, dan telah mewakili Students for Liberty ke acara Asia Liberty Forum (ALF) di Kuala Lumpur, Malaysia pada tahun 2016.

Haikal juga merupakan salah satu pendiri dan koordinator dari komunitas libertarian, Indo-Libertarian sejak tahun 2015. Selain itu, Haikal juga merupakan alumni program summer seminars yang diselenggarakan oleh institusi libertarian Amerika Serikat, Institute for Humane Studies, dimana Haikal menjadi peserta dari salah satu program seminar tersebut di Bryn Mawr College, Pennsylvania, Amerika Serikat pada bulan Juni tahun 2017.

Haikal dapat dihubungi melalui email: [email protected] dan [email protected]