(Photo: Rayi Gigih/IO)

IO – 2021 research by The Economist Intelligence Unit (EIU) titled “Democracy Index 2020: In sickness and in health?” reveals an interesting score: Indonesia is placed in 64th place globally, and 11th in Asia (including Australia). With a total score of 6.48, The Economist categorizes Indonesia as in a group of “flawed democracies.” 

Of the five assessment criteria, civil liberties are deemed a major issue in Indonesia, with a score of 5.59. As for other criteria, Indonesia scores 7.92 for electoral process and pluralism, 7.14 for government functions, 6.11 for political participation, and 5.63 for democratic political culture. 

This is not the first time the Indonesian Democracy Index has lost its place. In 2017, The Economist also released data placing Indonesia in 68th position, dropping by 20 places compared to the year before. 

The lack of a democratic political culture and civil liberties indicates the quality of democracy is declining in Indonesia, as we can witness from a number of political events recently, one being the silencing of public opinion and criticism of government through Law No. 11/2008 on Information and Electronic Transactions (ITE) which was later amended into Law No. 19/2016. 

The ITE Law is one of the reasons behind the weakening of democracy in Indonesia. Many criticisms by members of the public have ended up being reported to the police on often dubious charges of defamation and spreading fake news via electronic means. The ITE Law is often used as the tool of oppression to silence criticism by opposition groups. As a result, Indonesia’s democracy has been eroded by restriction of freedom of speech and expression. In a healthy democracy, freedom to hold opinions and criticize the government must be protected by the Constitution and serve as a check and balance mechanism in ensuring good and clean governance. 

The government has started to wake up to this issue. A day after The Economist’s publication, President Joko Widodo issued a statement urging the public not to hold back in criticizing the government. However, his plea received largely negative response from the public as people are still traumatized from criminalization attempt by government supporters against critics. 

This widespread skepticism was behind the government’s announcement that the ITE Law would be revised. On February  15, 2021, President Joko Widodo stated that the government would ask the House of Representatives to revise Law No. 19. President Jokowi argued that this is necessary because people have been reporting each other merely because they have differing opinions and also because the legal process is deemed not fair and just. 

The public has been pushing for the ITE Law to be revised many times, but the government has thus far refused to budge. Thus, when President Jokowi reignited the revision discourse, it was seen as a step forward in the post-reform democratization drive. 

Repeal “catchall articles” 

Law No. 11/2008 was actually enacted to protect the public interest from the misuse of electronic media, in line with the rapid advancement of information technology creeping into every aspect of our lives. The transformation of communication technology stemming from the microelectronics revolution in 1950 has given birth to a new technological paradigm characterized as the information age, marked by the proliferation of new media, which later gave rise to social media. 

However, this has also led to the exponential rise of cybercrime, often committed transnationally. Thus, the ITE Law is expected to be able to protect citizens from this scourge. As a matter of fact, in the beginning the law was mostly used to combat cybercrime, instead of defamation and slander. 

The spirit of the ITE Law is to create a healthy virtual public space. This is, by all means, extremely vital especially in light of the recent tide of misinformation, such as hoaxes, slander, hate speech, provocation and the like inundating the internet. 

Unfortunately, in its implementation, it has been increasingly used as a tool of oppression to silence freedom of speech. In recent years, the ITE Law has been frequently used to ensnare perpetrators of defamation and slander in the cyber space. In fact, many people consider the articles pertaining to defamation and slander to be vague and prone to abuse. A report by the Southeast Asian Freedom of Expression Network (SAFEnet) noted that between 2008-2018 there were 275 cases filed using the ITE Law. The victims came from various walk of life – teachers, students, activists, employees, writers, housewives, advocates, musicians. The trend is rising during the 10-year implementation of the law. 

This is corroborated by research from The Institute for Digital Law and Society, which found that in 2018 there were 84 cases filed using the ITE Law. 

If we look closely at the two reports, most of the victims are urban dwellers, which makes sense as telecommunication infrastructure and social media users are more prevalent in big cities than in villages. However, in the regions, the ITE Law has been increasingly used by local politicians and local governments to report their political rivals to the police on charges of defamation and others. Local oligarchs have asserted their power by weaponizing the ITE Law to silence critics or those who express their 

concern about social issues in their community. 

The plaintiff backgrounds can be categorized into three groups. First, ordinary people with sufficient money and time to file a case. Second, corporations seeking to silence activists voicing injustice or losses suffered by local community. Third, members of political parties who accuse their rivals of defamation or slander. 

The problem is, the majority of these reports use Article 27 (1, 2, 3) and Article 28 (2) as the legal basis. This means that all of these cases are related to content. On the contrary, crimes related to technology and computer systems have been underreported. This shows that the ITE Law by far is mostly used to punish alleged common crimes committed using technology. A lewd or insulting action, when committed using electronic means, will become a case prosecutable under the ITE Law. 

Thus, it is argued that ITE Law revision proposed by the government should focus on removing these vague “rubber articles” which actually run counter to the spirit behind the ITE Law conception. Article 27 (3) and Article 28 (2) have been the two most frequently used to file a police report under the ITE Law. 

Article 27 (3) criminalizes “any person who deliberately distributes and/or transmits and/or make accessible electronic information or documents that contain slanderous and defamatory language.” This article is a defamation article that is prone to be abused to repress freedom of expression or those criticizing the government, the police and the head of state. Meanwhile, Article 28 (2) forbids “any form of hate speech in terms of ethnicity, religion, race, and inter group relations (SARA).” This article can be potentially abused to repress religious minorities and citizens who criticize the government – the House, regent, mayor, governor to the president and vice president. 

The expectation is that the government will not only focus on these articles, but also review other articles posing potential threats to freedom of speech and expression, such as Article 26 (2) on deletion of irrelevant information, Article 27 (1) on immorality, and Article 29 on threat of violence that may potentially criminalize people who report a case to the police. There is also Article 40 (2a) on prohibited content and Article 45 (3) on threat of imprisonment for defamatory actions. This article is problematic because the police are allowed to detain a person during an investigation.

The revision should also address the reporting mechanism, to clearly state that a report can only be made by a victim. This is crucial because thus far, many reports are made by someone unrelated to the victim, thus making it easier for those who claim to be government supporters to report rival groups. Law enforcement officers must have the courage to categorically reject reports that are not directly filed by the victims or their attorneys. 

The seriousness of the government in question 

The planned revision of ITE Law was initiated by the government, so it needs to show its seriousness in seeing it through the House. President Jokowi needs to quell public doubts about the seriousness of the government in this matter. 

Indeed, President Jokowi has appointed the Coordinating Political, Legal and Security Minister (Menkopolhukam) Mahfud MD to lead and finalize the draft revision of the ITE Law. Two teams have been formed by the ministry to review the law. 

However, there are two major problems which bring the seriousness of the government into question. First, teams formed by Mahfud MD only comprise government agencies; academics, independent legal experts and community representatives who are structurally part of the review team are not involved. 

The first team is a steering committee, consisting of several ministers under the coordination of Mahfud MD. Then there are Communication and Information Minister Jhonny G Plate, Law and Human Rights Minister Yosanna H Laoly, Attorney General ST Burhanuddin and National Police Chief Gen. Listyo Sigit Prabowo. The steering team is tasked with providing direction and recommendations through coordination and synchronization among ministries/agencies in order to complete a comprehensive study on the ITE Law implementation. 

The second team is an executive committee led by Sugeng Purnomo, the Deputy for Legal and Human Rights Coordination of Kemenko Polhukam. This team consists of representatives from the Communication and Information Ministry, Law and Human Rights Ministry and the National Police Headquarters. 

Community representatives – academics, practitioners, victims, NGOs and violators of ITE Law – will only be involved in providing input to the review team but cannot participate in formulating a revision to the rubber articles that are at the core of the ITE Law controversy. 

Secondly, the ITE Law revision is not part of the 2021 National Legislation Program (Prolegnas) – a set of 33 priority bills with a goal of passage within this year. Should the government really be serious, it should be included in 2021 Prolegnas, not the following year and years afterwards. 

The government and the House should be in synch, to include the ITE Law revision in the 2021 Prolegnas and deliberate it quickly and continuously. We have seen how the government and the House could speedily revise the Commission for the Eradication of Corruption (KPK) Law. Likewise, the drafting of the Job Creation Law, which has nearly 1000 articles, took only a couple of months. They were able to hold intense deliberations until the wee hours, in the quiet chambers of the House building and hotel; until it was passed also in the early hours of the morning. 

Thus, it beggars the question why the same can’t also be done in ITE Law revision which only aims to change several articles. If the deliberation of the Job Creation Law which consists of thousands of articles and affects the lives of hundreds of millions of Indonesians can be carried out in a lightning-fast manner, then it is only logical that we expect the same from the government and the House for ITE Law. 

The key word is the willingness of the government and the House. There are common interests being pursued in the draft. This is where it gets problematic. Do the government and the House have a common interest in the ITE Law revision? President Jokowi has publicly stated that he will ask the House to revise the law. This was then followed up by the forming of review team. However, will the House fully capture the spirit of improvement? 

At this juncture, there needs to be a strong political will from the President. President Jokowi must be able to convince the House, which is mostly filled by pro-government parties, to include the ITE Law revision in the 2021 Prolegnas and accelerate the deliberation process of the law. President Jokowi must be able to transmit the same spirit to the House that the revision is very urgent, given the decline in Indonesia’s democracy index. President Jokowi must also be able to convince the chairmen of pro-government parties, the majority of whom also join his Cabinet, to lobby members of the House to accelerate the deliberation of the law. 

The President’s wish to revise the ITE Law must be welcomed by the House so the process can be completed more quickly. Moreover, the government has formed a special team to conduct a study, even though no element of civil society in involved. But at least, in order to accelerate the deliberation of the law in the House, the government-formed review team has prepared an academic paper. 

Restoring the spirit of the ITE Law 

The catchall articles in the ITE Law have become a point of concern for many parties since its inception, especially Article 27 (3) and Article 28 (2). In the course of its implementation, hundreds of people have fallen victim to these ambiguous articles. This was compounded by Indonesia’s law enforcement officers who tend to be overly textual in implementing laws. If only they prioritize progressive law as proposed by Satjipto Raharjo, the ITE Law would not claim so many victims. 

Progressive law encourages law enforcement officers to break with the tradition that only relies on laws and regulations per se. It argues that law cannot exist in a vacuum, separated from non-legal concepts. Law must be seen from a social and environmental perspective against which the legal issues emerge. 

However, because law enforcement officers tend to rely heavily on articles in the ITE Law and the Criminal Code, more and more citizens have to face the legal consequences. Criticism on social media is reported to police. Complaints about the poor services of government agencies and private corporation on social media can lead to imprisonment. As a result, the ITE Law is seen as a threat to democracy. Criticism became a luxury after the ITE Law was implemented. In the past three years, the call to revise the ITE Law has grown louder, spearheaded by many public figures, academics, mass organizations and NGOs. 

ITE Law is supposed to strengthen democracy, not compromise it. Freedom of speech and expression on social media should be fully protected by the law so that democracy can thrive. Freedom of speech is part and parcel in the era of democracy and a prerequisite for the growth of healthy public participation. 

Freedom of expression on social media is part of the government oversight by members of the public. This is a manifestation of the democracy itself because it calls for criticism for the benefit of society (citizens). According to Law No. 39/1999 Article 23 (2) on Human Rights, everyone has the freedom to hold, impart and widely disseminate his beliefs, orally or in writing through printed or electronic media, taking into consideration religious and cultural values. 

This aligns with Charles Tilly’s statement, that freedom of opinion and expression is one of the most important aspects of democracy. A democratic country is defined by its protection of freedom of expression, association and peaceful assembly. Under the principle “sovereignty of the people”, protecting the freedom of expression and opinion can support the supervision, criticism, and advice on how the country is run by the government. 

Freedom of expression is one of the civil liberties parameters in a democracy. Absent this, a country cannot be called a democracy. 

Thus, the government needs to restore the original purpose of the ITE Law, namely to protect the public against cybercrime which the traditional criminal law cannot effectively deter and protect businesses, small and large, using electronic means for transaction from potential fraud conducted over the internet. 

In our current digital era, where we use the internet in almost everything we do, the public must receive full legal protection from the government through the ITE Law. Cybercrime, such as hacking, phishing, identity theft, mobile phone scam, and other increasingly sophisticated modus operandi, need an ITE Law with teeth to pursue wrongdoers. 

These are cases that call for the use of ITE Law by law enforcement agencies. We can never let it be used to oppress and destroy political opponents and am effective tool to forcibly shut down a critical voice against the government. 

Simultaneously, the public should be encouraged to express their opinions politely and constructively on social media to help inform and improve public policy. Democracy in cyberspace must be conducted with civility. There is no place for hoaxes, slander and racism. The government should also educate the public to be critical of information they get from the internet and also take in balanced information from credible sources. Their digital literacy needs to be improved. 

President Jokowi is already on the right track to ask the House to revise the ITE Law. If successful, Indonesia’s democracy can be restored to its former glory. Let’s not lose hope! (Dr. Ujang Komarudin, MSi)

Dr. Ujang Komarudin, MSi is a lecturer and political observer at Universitas Al Azhar Indonesia (UAI). He is also Executive Director of Indonesia Political Review (IPR), which he founded in 2016. Ujang Komarudin obtained a Ph.D. in Political Science at the University of Indonesia (UI) in 2013.