“If its implementation leads to injustice, the law needs to be revised,” Jokowi had tweeted on Feb 15, 2021.
The ITE law essentially regulates the exchange of information and other electronic transactions. It enunciates what is banned on the internet. However, some critics view that its defamation article had been misused to criminalize certain parties, thereby not boding well with the freedom of expression.
In fact, the Jokowi administration and House of Representatives (DPR) had revised the ITE law in 2016, with the objective of correcting the law’s multi-interpretative articles.
However, Institute for Criminal Justice Reform (ICJR) and Legal Aid Center for the Press (LBH Pers), in its statement posted on its website (icjr.or.id) on October 28, 2016, echoed its concern over the “half-hearted” directional change of the amended ITE Law.
“From the start, the government has not shown much interest to the enforcement of the ITE law, specifically related to the freedom of expression. Changes made to the ITE Law are only legitimizing the interests of the government to curb the critical attitude of Indonesian society by adding new government powers. Mostly, all amendments add new powers to the government,” the ICJR noted in the statement.
Lately, the ITE law again drew a great deal of attention, especially following the death of a 29-year-old popular Muslim preacher, Ustadz Maaher, who died in a police prison on Feb 8, 2021, while placed in detention since December 4, 2020, over a hate speech case that violated the ITE law.
The outspoken preacher had reportedly filed a request of suspension of his detention owing to his illness and extended his apology over what he wrote on his Twitter account. However, his request was declined.
Related news: Minister declares formation of team to review Indonesia's ITE Law
A similar incident took place on June 10, 2018, when Muhammad Yusuf, 42, a journalist at a local news site, Kemajuan Rakyat, died in a prison after being arrested for five weeks and placed in a Jakarta police prison and later moved to a South Kalimantan prison.
Yusuf was charged with defamation and hate speech for his article on a land conflict between a major palm oil plantation company and local residents of Pulau Laut, South Kalimantan Province. His article was perceived as being provocative and defaming the company.
In 2019, Ahmad Dhani, a famous rock musician and an outspoken opposition figure, was sentenced to a year’s imprisonment after being charged over a hate speech in line with the ITE law.
In fact, during the period between 2016 and 2020, 786 law-related cases were reported, with 88 percent of those charged being placed behind bars, Damar Juniarto of the digital advocacy group, the Southeast Asia Freedom of Expression Network (SAFEnet), stated.
To follow up on the president’s ITE law tweet, Coordinating Minister for Political, Law and Security Affairs Mahfud MD had announced on Feb 22, 2021, that an inter-ministerial team had be formed to review or revise the Internet law, especially articles that have multiple interpretations.
The team members will work for a period of three months until May 22, 2021, to decide whether the ITE Law needs to be revised, Mahfud MD remarked.
The team members, recruited from his ministry, Communication and Informatics Ministry, and Ministry of Law and Human Rights, will review the existing law's chapters that can give rise to numerous interpretations.
Mahfud MD, Communication and Informatics Minister Jhonny G. Plate, Minister of Law and Human Rights Yasonna Laoly, Attorney General S. T. Burhanuddin, and National Police Chief Gen. Listyo Sigit Prabowo are members of the steering team.
In the meantime, Chief of the Indonesian Police General Listyo Sigit Prabowo has issued a circular letter SE / 2/11/2021, signed on February 19, 2021, to serve as a guidance to police officers in implementing the ITE law following President Jokowi’s instructions.
The Police chief drew attention to the president’s remarks at a leadership meeting of the National Police (Polri) and the Indonesian Defense Forces (TNI) on February 15, 2021, that highlighted the significance of law enforcers to be selective in responding to and handling reports referring to the ITE law violations.
"If the ITE law could not deliver a sense of justice, I will urge the DPR to revise the ITE law together because this is the upstream, particularly to abolish 'elastic' articles having multiple interpretations that could be easily interpreted unilaterally," Jokowi expounded.
Related news: Police must uphold justice while handling ITE Law-related cases: MP
The Police chief, in a circular letter, urged officers to exercise discretion while investigating reports of digital infringements and accord priority to mediation instead of prosecution in dealing with cases concerning defamation or hate speech.
He is optimistic that his circular letter would guarantee that Indonesia's digital space remains clean, healthy, ethical, and productive.
“Every officer of the National Police must remain committed to enforcing the law that can provide a sense of justice for the community,” the Police chief affirmed.
Praising the Police chief’s move, Pangeran Khairul Saleh, deputy chairman of the DPR’s Commission III, reiterated that the police’s guidelines must ensure a sense of justice.
“I hope that these guidelines do not take sides with anyone and guarantee a sense of justice and protect the freedom of opinion, especially in the current digital era," he stated.
Saleh is optimistic that in future, no criminalization of certain people will occur, and no one would be easily accused of violating the ITE Law in spite of ambiguity on which articles of the law are being violated.
Even though the National Police chief will support mediation and be choosy in receiving reports related to the ITE Law, the public should not overuse social media, the PAN politician cautioned.
Meanwhile, General Chair of the Indonesian Cyber Media Union (SMSI) Firdaus and Secretary General of SMSI M. Nasir also commended the Police chief’s move as a positive step forward.
However, Firdaus opined that the ITE Law should return to its original objective, which is especially to regulate information and electronic transactions.
To this end, Firdaus is optimistic that the ITE Law is returned to its original flow and articles 27, 28, 29, and 45 in the ITE Law should be removed, and the provisions of these articles are returned to the Criminal Code (KUHP).
A similar view was also voiced by Guspardi Gaus, a member of DPR’s Commission II, who stated that implementation of the Internet law must be returned to its original purpose, which is to ensure that electronic transactions are safe and protect the rights of consumers.
"The philosophy and objective of the ITE Law must be returned to the law’s initial objective, notably to ensure that e-commerce or electronic transactions run well, so that the consumers’ rights are protected,” Gaus emphasized.
Any revision of the ITE Law must be oriented to the principles of freedom of expression and justice, he affirmed.
A revision must also be directed toward regulations on information technology management and not on criminalization that has been accommodated in the KUHP, he added. Related news: Lawmaker praises Police chief's move on ITE Law implementation