Introduction
Indonesia enters another stage of cyber governance when the country’s authorities opened talks with Dewan Perwakilan Rakyat (House of Representatives – DPR) to amend Undang-Undang Informasi dan Transaksi Elektronik (Electronic Information and Transaction Act – UU ITE) earlier this year.
UU ITE has been fraught with controversies ever since its introduction in 2008 and its first amendment in 2016 did not manage to abate these. The controversies mainly relate to the government’s effort to stifle the freedom of speech and expression in the digital space, inviting backlash from civil societies, private sectors, academicians and international actors.
The government has responded to this by issuing Surat Keputusan Bersama (Joint Decree Letter – Surpres) on the Guidance of Implementation Criteria for UU ITE by the Minister of Communication and Information, Attorney General, and Head of Indonesian Police on June 23rd 2021.
However, due to the inadequate legal status of such a letter, the government still has to work with the DPR to revise the existing act to serve society with a better legal ground, especially in the cybersecurity sector. Such is the only way to stop further controversies.
Despite this, more complexities arise as soon as the DPR opened the discussion with the government to amend UU ITE. These are signified by a closed-door amendment process, a complicated legal drafting and a wide gap between public aspiration and facts on the ground.
Background
UU ITE is Indonesia’s first ever cyber law, introduced in 2008. Commission I of the DPR is assigned to cover issues in information, communication, broadcasting and internet affairs, alongside its other focus on security, military and intelligence issues. In this way, Commission I has been working as the parliamentary partner for the Ministry of Communication and Information to develop Indonesia’s digital governance as a whole, including the electronic information and transaction that have been the key chunk of UU ITE.
Fast forward to 2016, the act was revised for the first time. Changes were made in the segments on criminal acts and their punishment, the introduction of the right to be forgotten, the recognition of electronic information and document as legal evidence before the court, and cyber law enforcement.
The initial irregularity in UU ITE could be detected as early as when it was first formulated in the DPR, when Commission I took a bit too much of Commission XI’s responsibilities to govern financial matters and Commission III’s assignment to regulate criminal acts in general.
Commission XI, another chamber of the Indonesian House, is authorized to work with numerous Indonesian financial, banking, and monetary institutions which makes it more relevant to handle the transaction aspect of UU ITE. On the other hand, Commission III has the duty to ensure the supremacy of law in Indonesia, including how the Penal Code is supposed to be the legal foundation of this cyber law, parts of which UU ITE is supposed to administer as well.
Therefore, the ideal combination of groups to handle the initial drafting of UU ITE was supposed to be the three commissions mentioned above, to ensure that the three major areas of the law – namely cyber, transaction and criminal laws – are addressed accordingly. However, this step was not taken by DPR’s leadership board who preferred to allocate the law-making process to a single unit, Commission I.
Another way to examine whether UU ITE is viable and coherent is to separate those major areas into separate acts, with each specializing in specific aspects encompassed by UU ITE (lex spesialis).
The DPR’s inability to legislate properly is a significant concern for the future of lawmaking in Indonesia, not only in the sphere of cyberspace but also other issues not related to the digital space.
Since its implementation, UU ITE has seen hundreds of people being sent to jail. Names such as Muhammad Arsyad, Ervani, Anindya Shabrina, Deni Erliana, Zaki Amali and – the most popular of all – Baiq Nuril were among such individuals sent to jail.
Most of them were brought to the court by power holders in the name of defamation when the suspects were trying to reveal the ugly truth to the public or try to self-defend. The legal grounds provided by UU ITE undoubtedly accommodate the reports filed to proceed to the investigation stage. In fact, the conviction rate of those cases is notably high, at 88%.
SafeNet, a digital rights defender organization, recorded that 2022 had been the most terrible year of UU ITE controversies in the last nine years, with 97 cases of criminalization against those who express themselves. That number tripled from 30 cases in 2021.
As mentioned, the government produced the JDL to reduce the number of cases in 2021, whereby law enforcers were guided not to easily take criminal cases on the basis of UU ITE. However, that hope only turned into smoke as UU ITE cases flagrantly increased by 80% after the JDL came into effect.
The problem did not only lie with the fact that law enforcers did not understand the JDL. The legal status of the JDL has also been questioned by the public as it only applies to the executive branch while the court may not take the JDL substance into their judiciary consideration.
All of these have pressured the government to revise UU ITE. Nevertheless, the way that it is being carried out currently has only invited more headaches.
Closed Doors in the House
On 16 December 2021, the government formally submitted Surat Presiden (President’s Letter) containing a proposal for UU ITE revision to the DPR, but the legislative branch only accepted the proposal more than a year later on 13 February 2023.
The reason for that massive delay was the prolonged legislation process of the Personal Data Protection Act (PDPA) that was only completed in the closing days of 2022. Furthermore, the DPR commissions are not allowed to handle more than one at once, which in this case was Commission I which was formulating the PDPA. Another reason for the delay was merely politics, which is only clear to the leadership board of the DPR.
An act with lots of controversies such as UU ITE has a big political appeal for the government and members of the legislative body. There is an argument to be made that the controversial UU ITE could draw more attention to various political campaigns as the nation nears the general election in 2024.
On the contrary, mismanaging such a hot topic could create waves of backlash. The latter scenario, unfortunately, is what has been taking place over the last five months, with the head of Commission I, who is also the chairman of the UU ITE Working Group, decided to continue the process closed-door, away from public ears and eyes. His reasoning was that too many sensitive matters were being discussed in the meeting, leaving them with a decision no decision but to close the doors.
The private sector and civil society coalition have registered their rejection against this decision as they want to know that their aspiration is being heard and addressed properly in the Working Group. They do not want the elected representatives to repeat the same mistake they made back in 2016.
To be continued in Part Two.
