The Catchall Article of ITE Law
A reader writes the problem of ITE Law.
The Catchall Article of ITE Law
IN Law No. 11/2008 on information and electronic transactions (ITE), as already amended by Law No. 19/2016 on the amendment to Law No. 11/2008, the elements of deliberateness and unlawfulness (no right) always appear in the formulation of acts of cybercrime.
“Unlawful” means having no legitimate legal basis to perform a relevant act. The basis of lawfulness can originate in legislation, agreements or other legal foundations. “Unlawful” also implies abusing or going beyond the authority delegated.
The act prohibited under Article 28 Paragraph 2 of the ITE Law is that of deliberately and no right in disseminating information intended to generate hatred or enmity between certain individuals and/or communities in society on an ethnic, religious, racial and intergroup (SARA) basis.
Below is the stipulation of Article 28 Paragraph 2 of the ITE Law:
Anybody who deliberately and unlawfully disseminates information intended to generate hatred or enmity between certain individuals and/or communities in society on an ethnic, religious, racial and intergroup basis (SARA) basis.
In fact, the aim of this article is to prevent enmity, unrest or even division on the basis of SARA due to negative information of a provocative nature. The issue of SARA in public view is quite sensitive. Therefore, this article is stipulated as a formal offense, not a material offense.
As an example of its application, if somebody writes a status in a social network of information containing a provocation against a certain ethnic group/religion for the purpose of inciting public hatred toward or committing an anarchic act against a certain group, Article 28 Paragraph 2 of the ITE Law can directly be applied by law enforcement personnel to prosecute the writer of the status.
The criminal sanction of Article 28 Paragraph 2 of the ITE Law is specified in Article 45A Paragraph 2 of Law No.19/2016, as follows:
Anybody who deliberately and unlawfully disseminates information intended to generate hatred or enmity between certain individuals and/or communities in society on an ethnic, religious, racial and intergroup basis (SARA) as meant in Article 28 Paragraph 2 is subjected to a maximum imprisonment of 6 (six) years and/or a maximum fine of Rp1 billion.
The article’s effectiveness can be seen at least from two aspects, which are regulation and application/law enforcement. In terms of regulation, the formulation of this article is already adequate. In the application/law enforcement aspect of the article, it certainly depends on the case in question. In other words, the parameter of effectiveness of the article’s application is difficult to measure.
Deputy Speaker of the People’s Consultative Assembly, Arsul Sani, has stated that Article 28 of the ITE Law is a catchall provision. For this reason, the United Development Party (PPP) Faction will discuss it with the government and an expert team for the revision of this rule, by involving the PPP Faction in the special committee and working committee. “This is because it concerns the working convenience, security and safety of journalists,” said Arsul Sani.
The catchall article of the ITE Law is like an iceberg, a fait accompli that can prosecute journalists. This of course makes the elbow room of journalists limited. I think the Press Law is sufficient to safeguard the pillars of democracy, including press freedom.
For the avoidance of word of hatred, journalists can present written reports in the news rather than in social media, because social media are not regulated by the Press Law.
Aji Setiawan
Former Chairman, Reformed Indonesian Journalists Association of Yogyakarta
New Hopes for PPP
SUHARSO Monoarfa has finally become General Chairman of the United Development Party (PPP) through the party’s Congress IX in Makassar, South Sulawesi. Despite the presence of rivals at the event, Suharso was elected by acclamation.
Various expectations are pinned on Suharso to enable the party with the Kaaba symbol to pass the legislative threshold in the 2014 general elections. The threshold currently discussed in the House of Representatives (DPR) can be higher than the previous one. So, this becomes a tough challenge not only for the PPP but also for other small parties.
The present-day PPP is certainly different from the PPP in the New Order time. What factors have caused the PPP to be even more deflated so that it is further declining? There are several reasons behind the PPP’s deflation.
First, the PPP has been increasingly aloof from Muslims. After the 2004 general elections, this party seems to be no longer struggling for Muslims. Different problems faced by Muslims and ulema who are humiliated, harassed, insulted and criminalized by other groups and the authorities have been ignored by the PPP.
It is apparent here that the PPP is more distanced from Muslims. Islamic issues are taken care of by the Justice and Prosperity Party (PKS), making this party very close to Muslims. As an impact, the PKS has been growing bigger in its number of legislative seats as well as its national vote gain.
Second, PPP’s internal conflict increases the party’s trouble. The conflict occurring since the PPP’s general chairmanship of Suryadharma Ali, Muhammad Romahurmuziy and Djan Faridz has made organizational consolidation muddled up. This conflict, either genuine or by design, has prompted each general chairman to seek a support from those in power.
Government support is surely not free. Being under the power, this party has had no free speech. The silence over Islamic issues may have resulted from the PPP’s being within the power circle.
Third, from time to time the PPP has been increasingly closed. The PPP apparently does not communicate with various major Islamic mass organizations and strategic social groups. Members of the DPR/regional legislative councils from the PPP indeed visit public circles, but they are limited to its constituents or voters. It is merely done to maintain the number of voters. This party should be more open and able to adapt itself to the present time. The assumption that Islamic parties find it hard to grow is incorrect. As proof, the PKS and the National Awakening Party (PKB) are thriving.
Ardi Winangun
Matraman, Jakarta